CIC Allianz Insurance Ltd v Hallew Pty Ltd t/as G & S Diesel Services

Supreme Court of NSW|2021-11-17|Before: Wright J

Counsel: K Rewell SC (CIC Allianz Insurance Limited) N J Polin SC (Hallew Pty Ltd t/as G & S Diesel Services)

Solicitors: Hall & Wilcox (CIC Allianz Insurance Limited) Wotton + Kearney (Hallew Pty Ltd t/as G & S Diesel Services) File Number(s): 2014/00099044; 2017/00137903

Statutory basis for the claim and the essential questions

Section 5 of the 1946 Act relevantly provides: "5 Proceedings against and contribution between joint and several tort-feasors (1) Where damage is suffered by any person as a result of a tort (whether a crime or not): … (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by that person in respect of the liability in respect of which the contribution is sought. (2) In any proceedings for contribution under this section the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity. …".
CIC and Hallew were agreed that CIC was entitled to claim contribution or indemnity under s 5(1)(c) as a result of being subrogated to G&S Mini Bus's rights as a "tort-feasor liable in respect of that damage" and that the quantification of the relevant liability was $5,661,331.48. Consequently, the essential questions in these proceedings were: 1. whether Hallew was a "tort-feasor who… would if sued have been… liable in respect of the same damage"; and 2. if so, what contribution (or indemnity) in respect of the $5,661,331.48 should the Court determine to be just and equitable having regard to the extent of Hallew's responsibility for the damage.

The parties' main contentions and the principal issue concerning whether Hallew was a tortfeasor liable in respect of the same damage

In relation to the question of whether Hallew was a tortfeasor liable in respect of the same damage, CIC contended in substance that: 1. as at 5 May 2010, the rear brake linings of the bus did not accord with the required standard in thickness of at least 0.8 mm above the fasterners, or rivets, as required under the relevant RTA rules in relation to heavy vehicle brakes; 2. Mr Lewry owed a duty to persons travelling on the bus to use reasonable care and skill in examining the bus's rear braking system for the purpose of certifying whether the defect resulting from the brake imbalance on the rear wheels had been rectified and this involved checking the rear brake linings through the inspection ports; 3. Mr Lewry breached his duty because if Mr Lewry had examined the rear brake components with reasonable care and skill he would have observed through the inspection ports that the thickness of the rear brake linings was not at least 0.8 mm above the rivets; 4. in these circumstances, he would not have cleared the rear brake defect and the bus would not have been allowed to be operated until the rear brake system, including the linings, were satisfactory; 5. in this way, Mr Lewry's negligence, for which Hallew was vicariously liable, was at least one of the causes of the bus accident on 14 May 2010; and 6. thus, Hallew was a "tort-feasor who… would if sued have been… liable in respect of the same damage", within s 5(1)(c).
By the time of final submissions, Hallew did not, in effect, dispute that: 1. a duty of care arose in the present case and discharge of that duty involved taking the precaution of conducting a proper examination of the bus's rear brake system to clear the rear brake imbalance defect; 2. the risk of harm if the precaution was not taken was that, if the rear braking system of the bus was defective, the bus might run out of control and the ability to stop the bus would be significantly impaired resulting in injury to those on the bus; and 3. the risk was foreseeable and not insignificant.
There was also no issue between the parties that, if Mr Lewry was negligent in clearing the rear brake imbalance defect on the bus: 1. his negligence was a cause of the bus crash and the resulting loss and damage; and 2. in those circumstances, Hallew would be a tort-feasor liable in respect of the same damage as CIC's insured, G&S Mini Bus.
Hallew's main contention was that: either the rear brake linings met the standard required under the RTA rules at the time Mr Lewry cleared the rear brake defect on 5 May 2010; or CIC had not discharged the onus of proving that fact.
Mr Rewell of senior counsel, who appeared for CIC, and Mr Polin of senior counsel, who appeared for Hallew, conducted the hearing on a commendably focused basis. As a result, by the time of final submissions it had become clear that: 1. the determinative issue in the proceedings was a factual one, namely, whether the rear brake linings were less than 0.8 mm above the rivets by which the linings were fastened to the backing plates of the rear brake shoes when Mr Lewry cleared the defect in the rear braking system of the vehicle on 5 May 2010; and 2. the positions and adjustments of the S cams, push rods and other mechanical components of the rear brake assemblies at various times were not generally relevant in determining whether Hallew was liable on the basis ultimately relied upon by CIC.
Only if CIC succeeded on the factual issue of the thickness of the rear brake linings would any potential issues of legal principle arise, such as whether Mr Lewry had a duty to inspect the brake linings when clearing the rear brake imbalance defect.
Determining whether CIC discharged its onus of proof in relation to the issue of the thickness of the rear brake linings at the relevant time requires a detailed consideration of the agreed and admitted facts, witnesses' observations and other direct evidence of relevant facts and events, as well as material concerning bus brake systems. It also requires an analysis of the experts' opinions including, in particular, the assumptions on which those opinions were based.
Before turning to consider the events relating to the crash on 14 May 2010, it is useful to explain relevant aspects of the bus's braking systems.

The bus's braking systems

The evidence concerning the bus's braking systems was largely uncontentious and my findings in that regard are as follows.
The vehicle involved in the accident was an Austral Starliner coach registration TV 3574. Although there may be a difference between a coach and a bus, that distinction does not appear to be of any significance for the purposes of the present case, and I shall refer to the vehicle in question as "the bus".
The bus was fitted with two brake systems: the "service brake" and the "park or maxi brake". 1. The service brake was applied by the driver depressing the brake pedal. This was the system that was used in normal service, that was while the bus was being driven. The service brake operated on each of the four wheels on the bus so that when the driver depressed the brake pedal the brakes were applied to each wheel to slow the bus or hold it stationary. 2. The other brake system was the "park brake" or "maxi brake". The maxi brake was applied by manipulating a knob or handle on the dashboard and, on the bus, only operated on the two rear wheels. The maxi brake was either fully applied or fully released and was used in essentially the same fashion, and for the same purposes, as a park or hand brake on a motorcar.

The service brakes

The normal operation of service brakes involves the following: 1. the driver depresses the brake pedal; 2. air pressure is generated by the foot valve in proportion to the amount of brake pedal depression; 3. the air pressure is fed to the brake chamber on each wheel; 4. the air pressure forces each brake chamber's pushrod to extend; 5. the pushrod forces the slack adjuster to rotate; 6. the slack adjuster turns the S cam inside the brake drum attached to, and rotating with, each wheel; 7. the S cam forces the brake shoes to which the brake linings are attached outwards so that the linings contact the inside of the rotating brake drums; 8. friction is generated by the brake linings being in contact with the brake drum and this slows down or stops the drum rotating thus slowing down or stopping the wheel.
Figure 1 is a diagram showing how the brake chamber, pushrod, slack adjuster and S cam interact when the service brakes are applied. Figure 1 (Ex P p 7 Fig 2)
Figure 2 contains diagrams showing the inside of the brake drum and the positions of the S cam, brake shoes and brake linings when the brakes are not applied and applied. The lower diagram shows how the brake drum is attached to the wheel. Figure 2 (Ex P p 8 Fig 3)
If the S cam rotates so far that its ends are in contact with the rollers, it may not be possible for the S cam to be rotated back by the return spring when the driver ceases to depress the service brake pedal.
The normal operation of the brake may also be inhibited or prevented if the pushrod is extended to or beyond its limit of extension so that the application of air to the brake chamber does not cause the pushrod to be extended any further. This is referred to as it being "stroked". Once the brake chamber/pushrod is stroked, it cannot push on the brakes beyond that point and this may mean that the brake linings will not be brought into contact, or closer contact, with the brake drum as a result of depressing the service brake pedal.
In addition, it can be noted that if the brakes are properly adjusted, the angle between the pushrod and the slack adjuster should be close to 90°. This is the angle that maximises the ability of the brake chamber to rotate the S cams. In other words, if the pushrod is square to the slack adjuster, then the pushrod provides the greatest amount of rotation to the S cam's shaft and therefore the greatest amount of braking. When brakes are poorly adjusted, the angle between the pushrod and the slack adjuster can be less than 90° making the brakes less effective.

The maxi brake

The system for the maxi brake is different in some respects. It involves the use of an additional brake chamber bolted onto and operating in conjunction with the service brake chamber. In effect, a strong spring in the additional chamber operates so that the push rod from the service brake chamber is extended and as a result the brakes are applied. This occurs unless air pressure is introduced into the additional chamber to compress the spring and thus release the brakes. The key difference between the service brake chamber and the additional brake chamber is that compressed air applies the service brake through the service brake chamber but compressed air releases the maxi brake through the additional brake chamber.
In essence, the maxi brake "piggybacks" on the service brake. They both use the same brake shoes, the same brake drum, the same S cam, the same slack adjuster and the same pushrod. As Dr Casey explained, only the brake chambers are duplicated, and the rest of the brake system is the same for both the maxi brake and the service brake.

Brake shoes

Brake shoes are integral to the operation of the service brake and the maxi brake. The brake shoes in this case consisted of brake linings attached to a backing plate by means of rivets, which are sunk in a hole below the surface of the lining so that the rivet head does not usually touch the brake drum. When the brake lining comes into contact with the brake drum this produces friction which slows or stops the wheel to which the brake drum is attached. The brake lining is intended to wear away because it is the process of wearing away the lining which produces the friction required to achieving the braking effect.
Brake linings are made from two major constituents, a hard wearing material which is relatively invariant with temperature and a binder which, in effect, is the glue which holds the hard wearing component together. Phenolic resins are used as the binder for commercial brakes. This type of resin retains most of its strength at the highest temperatures.
When the surface of the brake shoe in contact with the brake drum becomes very hot, however, the binder burns away and releases the hard wearing elements that it once held in place and, as a result, the top layer of the brake lining can simply slide away. When this occurs, the resistance effectively applied through the brake shoe to stop the drum from rotating is reduced.
Since the brake shoes are inside the brake drum, they cannot generally be seen without the wheel being removed and the brake drum being disassembled. To permit checking of the brake linings without the need to disassemble the drum, two observation slots or inspection ports are cut into the brake drum. These slots or ports are approximately 8-10 mm wide and 20-24 mm long.
Figure 3 is a diagram of a brake shoe with a new lining, as used on the bus. It gives an indication of what might be viewed through the observation slot by the red dotted line and, in the cutaway section of the diagram, shows a rivet which is used to fasten the brake lining to the backing plate. The rivet is sunk in a hole below the upper surface of the brake lining. Figure 3 (Ex P p 18 Fig 9)
A change in profile on the side of the new lining can be seen in figure 3. This change is marked by a line which indicates in general terms a height a little above the head of the rivets. Such a line or mark, often referred to as a "tell tale", is generally included on brake linings so that by looking at the tell tale an observer can tell whether the brake lining has been worn down close to the rivet heads and should be replaced. The thickness of the brake lining above the tell tale indicates generally the amount of useable brake lining available.
Figure 4 is a photograph showing the brake shoe with relatively new brake lining on the near side front wheel of the bus, after disassembly of the brake drum. Figure 4 (Ex P p 19 Fig 10)
The red (lower) arrow in figure 4 points to the backing plate and the green (upper) arrow points to the tell tale or the line indicating the general level of the rivets.
Figure 5 is another photograph of the brake shoe on the near side front wheel of the bus taken from a different angle, showing the holes in which the rivets were sunk and the tell tale. Figure 5 (Ex D Image 21)

Brake fade

The performance of the bus's brakes depends on friction between the brake lining and the brake drum, and the performance changes as the temperature of the brakes changes. Initially, as the brakes heat up to a temperature of about 204° C they become more effective. However, if the brakes are allowed to heat up beyond that temperature to higher levels, brake performance reduces as the temperature increases. "Brake fade" is the colloquial expression used to describe the reduction in brake performance as the brakes are heated to those higher levels. Brake fade reduces brake performance, but it does not fully disable the brakes. Typically, the greatest reduction in brake performance as a result of very high temperatures is around 40% from theoretical best performance and about 25% from normal brake operation. At high temperatures, the brake drum can become literally "red-hot". When the brake drums which are cast-iron are heated to such a temperature, they exhibit a blue and black discolouration when cooled.
There are three indicators that brake fade has occurred: 1. a very pungent smell caused by the phenolic binder, which forms part of the brake pad, being burnt away. This is colloquially referred to as "burning brake smell"; 2. smoke produced by the burning away of the phenolic binder; and 3. black and blue discolouration of the brake drum after it has cooled down.

The transmission retarder

In addition to the service brake and maxi brake, the bus was fitted with a transmission retarder, which is a supplementary braking system. A retarder operates by using the transmission (which on the bus was an Allison automatic transmission) to slow down the wheels that are connected to it. In this case, it would have slowed down the rear wheels because they were the only ones connected to the transmission and the engine. When a transmission retarder is in operation it uses the hydraulic fluid in the transmission which has the effect of heating the fluid and this heating can cause damage to the transmission if not cooled. The transmission retarder on the bus was activated by a switch on the dashboard and, when switched off, no fluid flowed through the retarder and no braking effect was achieved.
It was not in dispute that, at the time of the crash, the transmission retarder on the bus had been disconnected and it could not even be switched on using the switch on the dashboard.

Relevant events and evidence

Although most of the relevant events occurred in early May 2010, it is useful to record some earlier events in order to understand and consider submissions made in relation to the state of the bus at the time of the accident. Then it is necessary to deal with the events that occurred in the first half of May 2010 and, finally, the subsequent inspections of the bus. Some of these facts were agreed by way of a formal statement of agreed facts, in other cases the evidence in relation to the facts was not substantially contested and otherwise the areas of dispute were relatively limited. My consideration of the evidence and some of my findings which can be made at this point are set out in the paragraphs which follow.

Previous ownership of the bus

On 3 April 2007, the bus was owned and operated by a business known as Steve's Minibus and Tours. Maintenance work was carried out on the bus by Burt Bros Automotive Services Pty Ltd. The work sheet for the work performed on 3 April 2007 indicated that, among other things: 1. in the box described as "Speedo" was "110778" indicating that the bus had travelled 110,778 km by that date; and 2. the brake shoes on the rear axle of the bus were relined with new 19 mm thick Bendix heavy duty brake linings, which were fastened with rivets.
On 29 November 2007, the service record indicated that the bus had travelled 134,966 km and under the heading "CHECK BRAKE LININGS & REPORT", the "FRONT %" box was ticked and said to be "75/55%" and the "REAR %" box was ticked and said to be "New".
On 17 March 2008, the service record indicated that the bus had travelled 146,523 km and under the heading "CHECK BRAKE LININGS & REPORT", the "FRONT %" was said to be "15 mm NS [near side]" and "15 mm OS [off side]" and the "REAR %" was said to be "15 mm NS" and "15 mm OS".
On 12 May 2008, the service record indicated that the bus had travelled 149,485 km and under the heading "CHECK BRAKE LININGS & REPORT", the "FRONT %" was said to be "50%" and the "REAR %" was said to be "60%".
On 8 September 2008, the service record indicated that the bus had travelled 159,707 km and under the heading "CHECK BRAKE LININGS & REPORT", the "FRONT %" was said to be "50% 12 mm" and the "REAR %" was said to be "50% 12 mm".

Sale of the bus to G&S Minibus, performance and servicing

In about January 2009, the bus was sold to G&S Mini Bus, which operated from a depot at Bringelly. No service records relating to the servicing or maintenance of the bus while owned by G&S Mini Bus were before the Court.
On 10 October 2009, Mr Kirk a driver employed by G&S Mini Bus drove the bus from Canley Heights to Jenolan Caves and Katoomba and returned to Canley Heights. The odometer reading for the beginning and end of that trip were 190,229 km and 190,674 km, respectively, totalling 445 km. Just before descending Victoria Pass, Mr Kirk discovered that the transmission retarder was not working. After arriving at Jenolan Caves, he noticed that the park brake would not initially hold the bus stationery but, after keeping his foot on the brake and waiting, the brake system operated correctly. On the return journey, Mr Kirk noticed significant brake fade.
It was not in dispute that at some unknown time between October 2009 and May 2010 the odometer of the bus was changed. Why or how this occurred was not explained in the evidence.
In May 2010 and since about 2008, Mr Fassoularis worked full time at the Bringelly depot of G&S Mini Bus performing mechanical work on its fleet of vehicles. Mr Fassoularis was qualified as a Light Vehicle Automotive Mechanic, completing a TAFE course in 1989 and had worked in service stations, workshops and motor auctions since that time. Although he was not qualified as a Heavy Vehicle Mechanic, he had experience working on heavy vehicles, such as trucks, trailers and buses and had been taught the service procedures for larger vehicles. In particular, between 2000 and 2004, Mr Fassoularis was responsible for servicing a fleet of buses, as well as Armaguard trucks and ambulances, while working at Western Tyre and Wheel at Hoxton Park. Nonetheless, because he was not qualified as a heavy vehicle mechanic he expected his work at G&S Mini Bus to be checked by a qualified person.

Registration inspection on 3 May 2010

On 3 May 2010, the bus was the subject of a registration inspection at the RTA Heavy Vehicle Inspection Station at Campbelltown.
The requirements for checking brakes when a registration inspection, such as that conducted on 3 May 2010, was carried out were specified in the RTA's Rules for Authorised Inspection Stations - Heavy Vehicles Issue 2 - June 2002 (the RTA HV Inspection Rules). The objectives of such an inspection were specified in rule 500 and the rule relating specifically to the inspection of brakes was rule 501.
Rule 500 was relevantly in the following terms: "Objectives Rule 500 500.01 . The objectives of this inspection are: a) to check that the vehicle is free from apparent safety defects which would affect its use on a road; … 500.02 The following Rules are the Safety Check standards. They are aimed at assessing a vehicle's safety-related features. The Safety Check is not meant to be a guarantee, or a thorough assessment of the mechanical quality of a vehicle. Examiners and Proprietors should advise motorists accordingly."
Rule 501 specified, in pars 501.01 to 501.14, 14 different checks or tests which were to be carried out, where applicable, when inspecting a heavy vehicle such as the bus. In rule 501, reasons why the vehicle might be rejected as failing the check or test were listed in respect of each check or test. Rule 501 relevantly included the following: "Brakes Rule 501 501.01 Check brake components Reasons for rejection a) Brake pedals do not have an anti - slip surface across the complete surface. … h) Brake drums or discs are not fitted or have missing pieces, or cracks other than short heat cracks inside the drums. … l) The thickness of the linings … is less than the manufacturer's recommended minimum. If this is not known or is no longer appropriate, the thickness of the linings … is less than: ● 0.8 mm above the fastener [rivet] … n) Brake shoes, springs, anchor pins, camera rollers or wishes, pull or pushrods, clevis pins, retainers or brake chamber mounting bolts are missing, loose, damaged or broken. … 501.09 Service brake test with a decelerometer … Set up a suitable decelerometer in the vehicle cabin. Drive the vehicle to a speed of at least 30 km/h. If the vehicle has a manual transmission, put the transmission into neutral, (automatic transmission vehicles may remain in gear). With hands on the steering real, bring the vehicle to a halt as rapidly as possible in a safe manner with one sustained and smooth application of the service brakes. Reasons for rejection a) The application of the brakes causes the vehicle to swerve from a straight line path. b) The service braking system decelerates the vehicle at less than the performance requirement specified in Table 501.01 [which does not appear to have any relevance in the present case]. … 501.12 Brake testing with a skid-plate tester … Reasons for rejection a) There is more than 30% difference in the brake force between the wheels on any same axle … 501.13 Brake testing with a roller brake tester … Reasons for rejection a) There is more than 30% difference in the brake force between the wheels on any same axle … …".
As a result of the inspection on 3 May 2010, a vehicle defect notice was issued in respect of the bus. The defect notice recorded that: 1. the inspection had been carried out at the RTA's Campbelltown Heavy Vehicle Inspection Station; 2. the odometer reading was 627,886 km; 3. repairs were required in relation to the brakes, wheels/tyres, oil/fuel leaks and ancillary equipment because of defects identified during the inspection; 4. in relation to the brakes, the defect was found to be "On Axle 2 [rear axle] - More than 30% brake imbalance between wheels"; 5. the defect category was recorded as minor and no label was issued; 6. the vehicle might only be driven for one day from the time and date of issue of the defect notice; 7. failure to clear the defect within 21 days from the end of the period the vehicle was allowed to be driven, might result in the registration being suspended and/or cancelled; and 8. the defect was required to be cleared by a "Part Inspection" at a Heavy Vehicle Authorised Inspection Station.
The defects relating to the wheels/tyres, oil/fuel leaks and ancillary equipment have no role to play in these proceedings and it is not necessary to consider them further.
The defect in relation to the brakes, which was that there was more than 30% brake imbalance on the rear axle, was based upon the results of a "MAHA test" carried out at the RTA Inspection Station at Campbelltown. The results of that test were recorded on the "MAHA Total Print Out" a copy of which is figure 6. Figure 6 (Ex 2)
The MAHA test results showed an imbalance on axle 2, the rear axle, of 41%, calculated as the difference between the brake force in kiloNewtons (kN) of the right and left rear wheels (22.69 - 13.47 = 9.22 kN) expressed as a percentage of 22.69 kN.

Mr Fassoularis's inspection and rectification work on 3 May 2010

After the RTA inspection on 3 May 2010, Mr Fassoularis was instructed to carry out repairs on the bus to rectify the defects listed in the vehicle defect notice, including the rear axle brake imbalance.
Mr Fassoularis gave evidence as to what he did by way of carrying out repairs on the bus and was cross examined.
While there were some issues with his evidence, Mr Fassoularis appeared to me to be a truthful witness attempting to recall as best he could what had occurred some 10 years before he gave his oral evidence. It was not put to him in cross examination that he was untruthful or unreliable. In my view, his evidence as recorded in the handwritten statement given to police in about 2011 was likely to be more accurate than his unaided recollections in 2021. My findings based on his evidence were as follows.
On 3 May 2010, when Mr Fassoularis was instructed to rectify the defects in a vehicle defect notice issued by the RTA, the bus was not due for service. His evidence was to the effect that after changing tyres, replacing inoperative lights and rectifying oil leaks, he proceeded to check the brakes including inspecting the brake drums through the inspection ports for wear and leaks. One observation was recorded in his 2011 statement in the following terms: "the lowest shoe thickness was approx. 4-5 mm thick and considered acceptable till next service. No leaks on brakes were found."
Mr Fassoularis was asked in cross examination whether the 4-5 mm was something that he saw or was it something he reconstructed as a result of what a police officer told him. His answer was: "Well I, I would, lest you think I was coerced into anything, the fact is if I recall it, I tried to write, write about it. It wasn't that he told me the thickness, it was what I remembered after the, after the actual undertaking, yep-- … After I undertook everything, if I remembered later I would write that on the statement. It wouldn't be any - I wouldn't write anything I couldn't remember."
The question as to what Mr Fassoularis meant by "approx. 4-5 mm thick" was also explored in cross examination. Mr Fassoularis explained that if the thickness of the lining was only 4-5 mm above the surface of the backing plate that would be below the top of the rivets and one would hear a loud scraping noise on the first brake application, presumably because the rivets would be scraping on the brake drum, and this could not be missed because it would be very, very noticeable. Mr Fassoularis also gave evidence to the effect that, at the time of his inspection, he had someone drive the bus and he was standing next to the driver and did not hear such scraping when the brakes were applied. As a result, I inferred that Mr Fassoularis was not intending to convey that the linings were only 4-5 mm thick and well below the level of the rivet heads, which would normally be 7.9 or 8 mm above the backing plate of the brake shoe.
My understanding of the evidence was that on his inspection through the inspection ports in the rear brake drums on 3 May 2010, Mr Fassoularis saw that there was some remaining thickness of useable lining, being the lining above the rivets, on each brake shoe. I do not accept that he measured the thickness or that he meant that the linings were precisely 4-5 mm above the tell tale or above the rivets, especially given the difficulties described by a number of witnesses in accessing the inspection ports and seeing the tell tales through the inspection ports, as well as the fact that the tell tale would only give a general indication of the level of the rivets. In my view, Mr Fassoularis's evidence was to be understood as conveying that he assessed that the brake linings that he could see were acceptable until the next scheduled service and the approximate figures he gave were an attempt to express that concept rather than a measurement.
In relation to rectification of the brake imbalance, Mr Fassoularis's 2011 statement recorded: "Then I would start engine to fill air tanks, chock wheels, release park brake and raise 2 wheels at a time. Then I would tighten brake adjusters till wheels locked and back them off 3 to 4 clicks. After repeating procedure on all drum brakes a road test was arranged when it returned still not happy with brake uneven pressures we carried out readjustment and retest then took it to other inspector to have R.T.A. inspection cleared."
In relation to this part of his evidence, Mr Fassoularis explained in his supplementary evidence that he used the words "I would" twice in the passage quoted because he had no specific recollection, at the time he made the 2011 statement, of actually taking the particular actions so described. I accepted that the first two sentences in the quotation refer to Mr Fassoularis's general practice rather than his actual recollection, but that this was likely to be what he did on 3 May 2010. Mr Fassoularis's evidence was then that, after an unsatisfactory road test, further readjustment to the rear brakes was carried out and, on retesting, he was satisfied that the rear brake imbalance defect had been adequately rectified so that it was appropriate to take the bus to have the defect notice cleared by an authorised RTA heavy vehicle examiner. I accepted that this is what occurred.

Mr Lewry's examination on 5 May 2010

On 5 May 2010, Mr Fassoularis or another employee of G&S Mini Bus delivered the bus to Hallew's Narellan premises for the purpose of having the defects identified in the vehicle defect notice cleared. The bus had travelled approximately 30 km between leaving the RTA Heavy Vehicle Inspection Station at Campbelltown and its delivery to Hallew's premises on 5 May 2010.
As at May 2010, Mr Stuart Lewry, a heavy vehicle mechanic by trade, was a part owner and employee of Hallew and, for over 10 years, he had been an Authorised Heavy Vehicle Examiner for the purposes of RTA inspections. At that time, the applicable rules in relation to the examination of heavy vehicles on behalf of the RTA by Authorised Examiners were the 2010 Business rules for the Authorised Inspection Station scheme of the RTA (the AIS Business Rules), which had taken effect from 19 April 2010. Hallew's premises at Narellan included a Heavy Vehicle Authorised Inspection Station for the purposes of the AIS Business Rules. These Rules did not require a Heavy Vehicle Authorised Inspection Station to have a brake test machine capable of testing individually the brakes on each side of an axle, such as a skid-plate test or a roller brake tester.
As an Authorised Examiner, Mr Lewry was authorised to clear the defects in the vehicle defect notice in respect of the bus. That defect notice indicated that the defects were classified as "minor" defects which could be cleared at a Heavy Vehicle Authorised Inspection Station after a "part", or partial, inspection as opposed to a "full" inspection. The maximum fee which Mr Lewry was entitled to charge for clearing the defects by way of a partial inspection was $29.32 by virtue of rule 2.6 and Appendix 1-F of the AIS Business Rules.
The provisions of the AIS Business Rules relevant to clearing defect notices included the following: "2.6 Defect Notices ● A vehicle defect notice is issued by an Authorised Officer. It is issued when a vehicle is inspected and found to be defective … ● The category of the defect is indicated by the issuing officer on the defect notice… ● The defect notice will indicated which type of AIS the vehicle is to be inspected.… … ● A relevant fee is charged as per Appendix 1 - F ● Unless otherwise indicated on the defect notice, the vehicle is subject to a full inspection. ● If the 'Part inspection' box is ticked on the defect notice, the Authorised Examiner is required to check only the items listed on the notice. An Inspection Report is not required to be issued … ● For a part inspection if all or some of the faults have not been rectified, the defect notice must be returned to the person presenting the vehicle who must be advised of the problems ● When the inspection is completed and the vehicle has passed, the cleared defect notice … must be given to the customer. There are instructions on the defect notice on how to clear the defect notice … Clearing a defect notice 2.6.6 When all faulty items have been cleared …, the Authorised Examiner must complete the 'Inspection Report' section on the defect notice. … 2.6.7 The cleared Defect Notice must be stamped in the space provided with the station stamp …".
Given that the "Part" inspection box had been ticked on the vehicle defect notice, Mr Lewry was not required: 1. to check items other than those listed on the notice; or 2. to issue an inspection report.
Thus, according to the AIS Business Rules, since the brake defect listed on the notice was the greater than 30% brake imbalance between the wheels on the rear axle, Mr Lewry was only required to check the brake imbalance relating to the rear wheels and not any other items which might affect the brakes of the bus.
Mr Lewry had been carrying out repairs to heavy vehicles since obtaining his trade certificate in 1994/95 and he estimated that during his career as a heavy vehicle mechanic he would have inspected, serviced, repaired and replaced tens of thousands of brake shoes/pads. As at May 2010, his average day involved working on the tools, supervising other mechanics and carrying out eight to ten clearances of defect notices issued by the RTA.
Mr Lewry's evidence was that he had no recollection of: 1. G&S Minibus's bus being brought to him on or about 5 May 2010 for the purposes of clearing the defect notice; 2. inspecting and testing the bus; or 3. clearing the defect notice.
Nonetheless, since he had completed, signed and stamped the part of the vehicle defect notice indicating that all the defects including the brake imbalance had been cleared, his evidence was to the effect that he would have carried out his usual practice in order to clear all the defects, including the brake imbalance.
Mr Lewry's evidence included that his usual practice for clearing a brake imbalance defect was to: "16.1 identify that the registration on the Defect Notice matches the vehicle presented for inspection; 16.2 chock the front wheels; 16.3 start the vehicle to allow the air to build up in the brakes; 16.4 release the park brake; 16.5 slide under the vehicle using a creeper with a torch and check the brake adjustment. This involves checking the brake lining through the inspection port, check if oil was leaking from the seal, check the slack adjusters for movement in the slacker [sic] adjusters and S-Cam shafts; 16.6 have someone in the bus to apply the [service] brake to check the stroke; 16.7 release the brake. If the stroke is at 90 degrees, no adjustment is needed; 16.8 apply the park brake and take the chocks out; and 16.9 carry out a decelerometer brake test by taking the bus for a drive to about 30 km per hour, slamming on the brakes and checking the skid marks". [2]
Mr Lewry was challenged quite vigorously in cross examination as to a number of aspects of his evidence. One challenge related to the statement given by Mr Lewry to police in December 2010. In his police statement, Mr Lewry described as fact both the bus being brought in by Mr Simon Lees and what Mr Lewry then did to clear the brake defect and what he observed, even though he maintained in his evidence in these proceedings that he had no recollection at all of the particular bus or what he did before clearing the defects, not only at the time of giving evidence in these proceedings but also at the time of making the police statement. Mr Lewry described part of his evidence in the police statement as a "guess". He also explained that, because in December 2010 he could not remember the bus or what he did before clearing the defects, he had been told by the police officer to write a statement based on his usual practice or the process of what he did when clearing a brake imbalance defect, which he did. He also said that he made an "assumption" as to who had brought the bus in.
The evidence in Mr Lewry's police statement was, in the terms in which it was expressed, not consistent with an inability to recall the events described. Nonetheless, I accept that Mr Lewry did not understand, or fully understand, when he made his police statement the difference between, on the one hand, an actual recollection of carrying out inspections and testing in accordance with his usual practice and, on the other, a belief that he probably followed his usual practice even though he had no specific recollection of what he did in the particular case.
Secondly, Mr Lewry was questioned about why he did not keep any print out of the result from the decelerometer test which he said he would have carried out since that would have been simple and would prove that he performed the test on the bus when he cleared the defects. Mr Lewry said that it was not a requirement that it be kept and so he did not need to print it off. In so far as this cross examination involved the implicit contention that Mr Lewry did not carry out a decelerometer test, such a contention cannot be accepted in light of the facts formally agreed between the parties for the purposes of these proceedings. The agreed facts included that "[a]s part of his work on 5 May 2010 Mr Lewry used a decelerometer to assess the overall braking performance of [the bus]". [3] Thus, it must be accepted that Mr Lewry did carry out testing on the bus using a decelerometer before he cleared the defects on 5 May 2010.
Thirdly, it was suggested in cross examination that when Mr Lewry created his police statement, he was simply doing the best he could to make sure that whoever else got blamed for this accident it was not Mr Lewry and that he was prepared to make a false statement to police in an attempt to ensure that no‑one could blame him in any way for the accident. These suggestions were rejected by Mr Lewry.
Furthermore, at times the questions in cross examination appeared to suggest or hint that the bus had not been brought to Hallew's Narellan inspection station or that Mr Lewry had not inspected or tested the bus at all but had been prepared to accept an assurance by G&S Minibus that the defects had been remedied and to clear the defects simply on that basis. These propositions were not, however, pressed in closing submissions. Such propositions also appeared to be inconsistent with the agreed facts that: 1. Mr Fassoularis and/or another employee of G&S Minibus delivered the bus to the Hallew on 5 May 2010; [4] and 2. Mr Lewry used a decelerometer test to assess the braking performance of the bus. [5] On the basis of those agreed facts, it must be accepted that the bus was delivered to him for inspection and Mr Lewry did carry out some testing on the bus before he cleared the defects on 5 May 2010.
In addition to the comments made above, I record that I did experience some unease as to whether Mr Lewry was an entirely truthful and reliable witness. His answers concerning why he had said in his police statement that Mr Lees had delivered the bus to the Narellan depot when he could not remember that event were not particularly convincing. In the present case, however, nothing turned on who delivered the bus to Hallew's Narellan depot and the other relevant parts of his evidence were consistent with the documentary record, being the clearance certification on the vehicle defect notice, and did not lack inherent credibility.
In light of the evidence as a whole and the agreed facts, I would accept Mr Lewry's evidence as to his usual practice as truthful and reliable and I would infer, given his clearance of the defects certified on the vehicle defect notice, that he followed his usual practice when clearing the defects, unless there were other evidence which rendered it inappropriate to accept Mr Lewry's evidence. I shall return to consider whether that is so, later in these reasons.
Notwithstanding that conclusion, some parts of Mr Lewry's evidence were not effectively challenged, and I accept the following: 1. if Mr Lewry observed through the inspection port that a brake lining was worn down below 0.8 mm above the top of the rivets by which the lining was fastened to the backing place, he would not clear a defect notice because to do so would put an unsafe vehicle on the road; 2. the decelerometer brake test which was part of Mr Lewry's usual practice in clearing a rear brake imbalance defect involved taking the bus for a drive, reaching a speed of about 30 km per hour, then slamming on the brakes so as to give a reading on the decelerometer and create skid marks which could be checked to make sure that they started at the same point, were similar lengths and were straight; and 3. if the skid marks started at the same point, were similar lengths and were straight, this is an indication that the brakes are in balance and not out of balance.
Other agreed facts relating to Mr Lewry's clearing of the defect also included the following: [6] 1. a decelerometer cannot measure brake imbalance; 2. Mr Lewry did not have access to a MAHA roller or skid plate testing apparatus; and 3. Mr Lewry cleared the vehicle defect notice in respect of the bus on 5 May 2020.
It was not contended that Mr Lewry was required to have access to a MAHA roller or skid plate testing apparatus before he could clear a brake imbalance defect on a vehicle defect notice in 2010. Mr Peter Dobson's evidence confirmed this to be so.
At this point it is helpful to consider at least part of the evidence of Mr Dobson, which was not substantially challenged in cross examination. He had been an RTA Inspector Vehicle Regulations for many decades by May 2010 and was an expert in relation to the requirements of RTA inspections and examinations of heavy vehicles, and I accepted his evidence in these regards.
Mr Dobson confirmed in his evidence in cross examination that an Authorised Examiner who was asked to clear a brake imbalance defect was not required to determine why the imbalance was there. He also gave evidence to the effect that clearing a brake imbalance could, in 2010, properly have involved the Authorised Examiner: 1. doing a brake test using a decelerometer to see if the brakes, and thus the vehicle, were in a roadworthy state in that regard; 2. doing a rolling test which involved driving the bus and seeing how evenly it pulled up by observing the skid marks and whether they demonstrated that the brakes were braking evenly; 3. if the rolling test was satisfactory, sliding underneath, having "a quick look at the linings, if he could see them, the travel on the brakes"; and 4. if those were satisfactory, clearing the defect.
The rolling test described by Mr Dobson was essentially the same as the decelerometer brake test as described by Mr Lewry.
Mr Dobson agreed that brake imbalance was simple in that one brake was providing more brake force than the other and that the rolling test was a "great test" for determining whether a brake imbalance had been rectified. He also accepted, in effect, that on the particular bus in question, the brake linings were difficult to see through the inspection ports, partly because the ports were difficult to access, and that, if an Authorised Examiner was satisfied that the rolling test indicated that the brake balance was satisfactory, there was no check list to go through and the Examiner was only required to do his best to see if he could check the linings and, if nothing untoward was observed, the brake imbalance defect could be cleared.
Mr Dobson also gave evidence that if there were still a brake imbalance of 41%, as recorded on the MAHA print out from 3 May 2010, when the rolling test or the decelerometer test was carried out on 5 May 2010, it would be very obvious from the skid marks.

The morning of 14 May 2010

As at 14 May 2010, Mr Bojan Batovac was employed by G&S Minibus as a driver. It was an agreed fact that on the morning of 14 May 2010, Mr Batovac drove the bus to Bondi Beach and, while there, he observed that the maxi brake, or park brake, was not working. It was not clear from the agreed fact whether this meant that the maxi brake was not working at all or that it was not working properly, as experienced for example by Mr Kirk at Jenolan Caves in 2009.

The accident on 14 May 2010

On 14 May 2010 at around 7:15 pm, the bus crashed through the guard rail on a tight left hand hairpin bend on Moss Vale Road in the Barrengarry Nature Reserve approximately 10 km south-east of Fitzroy Falls.
At the time of the crash, the driver of the bus was Mr Lees, who suffered fatal injuries as a result of the accident. There were a number of passengers on the bus who were injured as a result of the accident.
It was dark at the time of the crash, there was no street lighting, and the road surface was dry.
The odometer reading of the bus at the accident scene was 631,880 km indicating that the bus had travelled a distance of 3,994 km, or approximately 4,000 km, between the time it left the RTA inspection station on 3 May 2010, when the odometer reading was 627,886 km, and the time of the accident on 14 May 2010.
There was no evidence before the Court explaining or indicating how or where or when the bus had been driven for approximately 4,000 km between the time when it left Hallew's Narellan depot on 5 May 2010 and the crash on 14 May 2010, except that, on 14 May 2010 before the crash, the bus had been driven, at least, to Bondi Beach then to the Southern Highlands and down Moss Vale Road towards Kangaroo Valley where it ran off the road approximately 1 km from the downhill end of a long steep descending gradient on Moss Vale Road.

The police investigation of the accident scene

On 14 May 2010 at about 10:04 pm, Senior Constable Phillip Hamilton, of the Southern Region Crash Investigation Unit, and Sergeant Hartley attended the scene of the accident. Sen Const Hamilton was a licensed motor mechanic with approximately 15 years' experience before he joined the Police Force. As a police officer, he joined the Crash Investigation Unit in October 2006 and completed a number of courses relating to investigation of the causation of crashes. I generally accepted his evidence of his observations at the scene and that he had specialised knowledge based on his training and experience. I also accepted his opinions where they were substantially based on that knowledge and the factual assumptions were established on the evidence. Part of his evidence, however, went beyond his observations and his opinions based upon his specialised knowledge and, to that extent, I did not accept that part of his evidence and where it involved factual matters I treated it as assumptions which, if they were to be accepted, were required to be proved by other admissible evidence. Where Sen Const Hamilton's opinions were based upon assumptions which were not established by other, admissible evidence, I did not accept those opinions.
Sen Const Hamilton's evidence concerning the crash site, which I accepted, was that: 1. in the region of the crash site, the minimum and maximum temperatures on 14 May 2010 were 2.4° C and 14.7° C respectively; 2. the roadway in general approaching the crash site descended at an average gradient of approximately 8% (4.5°) over an estimated 8 km; 3. the position and orientation of the gouge and scuff marks on the road indicated that an impact with the guard rail and subsequent exiting of the road surface by the bus was inevitable, presumably because of the speed and direction of travel; 4. the guardrail had been sheared from the mounting posts as a result of the impact from the bus; 5. the final resting position of the bus was recorded by NSW Police Forensic Services group as 42 m into the bush from the position of the damaged guardrail; 6. in Sen Const Hamilton's opinion, the bus left the roadway, sheared through the guard rail and became airborne with the front section of the bus hitting a number of trees before impacting the ground approximately 22 m from the road service having fallen a vertical distance of 6.1 m below the road surface; it then continued for another 20 m into the bush before finally coming to rest; and 7. the bus sustained severe damage as a result of impacts with trees and vegetation, especially to the front section including windscreens, nose panels, suspension components, engine cooling system components and electrical components.
Figures 7 and 8 show the final resting position of the bus taken from the roadway and the near side rear of the bus in that position, respectively. Figure 7 (Ex D Image 7) Figure 8 (Ex D Image 9)

Recovery of the bus

Sen Const Hamilton said that, after completion of the police investigation of the scene, the bus underwent "a complex/recovery salvage operation" but he did not give any further details of what occurred in that operation except to say that he noticed that whilst the bus was being pulled back by the salvage crew all four of the bus's wheels were in contact with the ground and rotating in a similar fashion without any apparent restriction.
Mr Dobson also gave evidence concerning the recovery operation. He had been an Inspector Vehicle Regulations with the RTA for approximately 32 years in 2010. He held qualifications in automotive engineering, welding fabrication, transmission and automotive electricals, as well as having experience in accident investigation and MAHA brake testing unit training. I generally accepted his evidence of his observations at the scene and that he had relevant expertise and could express expert opinions based on his specialised knowledge and assumptions which were established on the evidence
At about 11:30 pm on 14 May 2010, Mr Dobson was recalled to duty to attend at the crash site. On arrival he observed the bus down a steep embankment leaving no visible braking skid marks on the road area.
Mr Dobson inspected the bus while it was in its final resting position and observed that the front brake drums were still hot to touch and were blue from the heat with a very strong burning smell coming from them. The rear brakes were at a lower temperature, similar to the normal operating temperatures of the final drive and axle housing and Mr Dobson said he expected that the rear brakes would have been hotter if there had been braking on the rear. The rear brakes appeared to Mr Dobson to be fully applied due to the depletion of all brake air from the brake booster causing extended travel from the brake booster pushrod to the slack adjuster indicating very low braking efficiency on the rear axle.
In the area around the driver's seat, Mr Dobson observed that the maxi brake was in the applied position. He attempted to release the maxi brake but was unsuccessful due to the depleted air supply. Mr Dobson said that the transmission shifter was in low gear, although there was some dispute as to whether that observation was accurate in light of the photograph that indicated that the bus was in second, not first, gear.
When the recovery crew with their tow truck arrived, Mr Dobson advised them not to adjust or wind off the maxi brake before winching the bus up the embankment, despite the general practice for recovery to wind the brakes off so that the vehicle can be towed back up. He said he did so in order to be able actually to observe what happened as the recovery team pulled the bus back up the hill. Why it would be important to observe this when it might involve damage to the brake components of the bus as a result of the extraction process was not explained.
Mr Dobson said that he observed that during recovery as the bus "was retrieved up the side of a slippery slope" the rear wheels rolled and that, if the maxi brake was operating correctly the wheels would have been locked and the recovery team probably would not have been able to pull the bus up or it would have "skidded up". Mr Dobson was not asked in evidence what would have happened if the maxi brake was only operating partially, as experienced by Mr Kirk on 10 October 2009, when the maxi brake would not initially hold the bus stationery but, after keeping his foot on the brake and waiting, the brake system operated correctly.
When the rear axle was lifted clear of the ground allowing Mr Dobson to gain access to the external braking components, he observed that the rear brakes offered only "minimal rolling resistance" and the wheels could be rotated by hand. He also found that both pushrods had moved more than 80% of their travel and had travelled over centre with the brakes fully applied.
After recovery from the bush, the bus was towed with the rear wheels on the road and with the maxi brake applied from the crash site to the Crash Investigation holding yard at Albion Park police station, which is a distance of about 60 km.

Inspections on 15 and 19 May 2010

On 15 May 2010, Sen Const Hamilton conducted a visual inspection of the rear braking system components but there did not appear to be anything of significance revealed.
On 19 May 2010, Mr Dobson inspected the braking system of the bus and discovered that a number of the airlines had been damaged because of the crash and he was unable to operate the brake system via the foot pedal. On inspection of the rear brakes, he found that "push rod movement was more than 80% of their travel over centre with the brakes fully applied" and the brake linings as seen through the backing plate inspection ports showed both brake linings to be excessively worn beyond the level he considered appropriate for continued operations.
According to Sen Const Hamilton, no measurements were made while the bus was at Albion Park and the wheels were not taken off nor were the brake drums disassembled there.
Mr Dobson reviewed the MAHA brake test results obtained on 3 May 2010 and he opined that, in light of the rolling resistance reading and the applied force reading, there was a problem associated with the braking components contained within the drum assembly, and it would be necessary to remove the drum/wheel assembly to inspect the condition of those components. He was also of the opinion that the readings indicated that, as at 3 May 2010, the S cam was still rotating allowing the rear brakes to engage and release. However, the low brake force reading on the left or near side was, in his view, suggestive of a mechanical disadvantage being experienced due to worn brake unit components creating excessive brake shoe travel.
In re-examination, Mr Dobson explained that, at the time of the 3 May 2010 inspection, the circumference of the rear drum might have worn so badly that the radius of the brake shoe was not contacting the whole lot of drum, and although the S cam was operating at that stage, the brake shoe went to "the end of travel and jumped over the end of the S cam" during the few thousand kilometres travelled before 14 May 2010. This was said by Mr Dobson to be why, in substance, towing the vehicle with the maxi brake on would not have caused damage to the brake linings on the rear axle. Two comments may be made concerning this evidence.
First, I accepted that Mr Dobson's opinion provided a potential basis for concluding that the towing would not have damaged the brake linings on the rear axle, but it depended on the S cam ceasing to be fully operative, and not being partially operative, before the crash and before the recovery process and the towing to Albion Park. I could not reach any concluded view on those factual matters relating to the S cam on the basis of the evidence before the Court. In addition, Mr Dobson's view as to the towing having no effect also depended on there being no contact between the rear brake linings and the brake drums after the bus was extracted from the bush. Other evidence indicated that this may not have been so, and I shall refer to that later in these reasons.
Secondly, Mr Dobson's opinion provides a basis for concluding that the approximately 4,000 km which the bus travelled after Mr Lewry's inspection and before the crash involved use of the brakes that caused the brake shoe to go to "the end of travel and [jump] over the end of the S cam" and this was a contributing factor to any loss of braking on the rear axle rather than it being attributable entirely to inadequate brake linings.
As I understood his evidence in cross examination, Mr Dobson also agreed, in effect, and I accepted that in order to retain "the precise integrity of the level of lining before you towed it", one would not tow the vehicle by the means used in this case if there was any contact at all between the brake linings and the brake drums on the rear wheels. The integrity of the linings could have been preserved during the towing operations by use of bolts called "cage bolts" to ensure that the brakes were not applied during towing. Cage bolts were not used in this case and there did not appear to be any satisfactory explanation in the evidence as to why they were not used.
It also appeared from Mr Dobson's evidence in cross examination that, when he formed his opinions, he was also not aware that the bus had only travelled 30 km between the RTA registration inspection on 3 May 2010 and Mr Lewry's examination on 5 May 2010 and that, as a result, the brake linings were likely to be in the same state on 5 May as they were on 3 May 2010.

Towing from Albion Park to Zetland

Prior to 30 September 2010, the bus was towed with the rear wheels on the road from Albion Park to Zetland. This was a distance of approximately 130 km. The towing involved: 1. the bus travelling at about 80 km per hour for a substantial part of this journey; 2. the tail shaft and axles still being installed contrary to the transmission manufacturer's instructions, which may have caused damage to the internal workings of the transmission; and 3. the maxi brake being applied and cage bolts not being used.

Inspection and testing on 30 September 2010 and 6 October 2010

In 2010, Mr Graeme Lawrie was a crime scene officer and licensed motor mechanic with specialised knowledge based on his training, study and trade experience as a motor mechanic with an Associate Diploma in Engineering (Maintenance) - Vehicles. He was a member of the Institute of Automotive Mechanical Engineers with 38 years' experience and had post-trade certificates in heavy vehicle repair. I generally accepted his evidence.
On 30 September 2010, Mr Lawrie inspected the bus at Zetland. In addition to the damage to the front and sides of the vehicle, Mr Lawrie observed that the rear of the bus had sustained buckling and collision damage. In his opinion, all the damage was consistent with it being sustained during the collision and subsequent salvage operation.
He noted that cage bolts, used to release the brakes allowing the wheels to rotate without interference from the brake shoes, had not been fitted post collision. His visual examination through the inspection ports revealed that the front brake linings were of serviceable thickness and the rear brake linings were "in-sufficient thickness and requiring repair" and all brake chambers were intact. In addition, Mr Lawrie noted that the rear brake chambers were "'stroked'", to use the term explained above.
Mr Lawrie had the bus's damaged airlines and engine cooling system repaired to enable the testing of the braking systems on 6 October 2010.
After the airlines had been repaired, initial testing indicated that the front brakes were operating effectively and locking the wheels, but the rear brakes operated but did not lock the wheels. Mr Lawrie explained, in relation to the rear wheels, that there was movement sensed and there was retardation of movement experienced when the brakes were applied but the brakes did not stop the wheels rotating entirely when rotational force was applied to them, as they would if the brakes were operating normally.
On 6 October 2010, the bus was subjected to two RTA brake roller tests using a portable test machine known as a "Truckalyser" or vehicle inspection trailer (VIT). Mr Lawrie observed these tests taking place. The results of these VIT tests are set out in figure 9 below (with handwritten annotations). Figure 9 (Ex B p 66)
Mr Lawrie summarised these results as demonstrating, in respect of the rear brakes on "axle 2": 1. excessive brake drag, on the basis that the maximum rolling resistance must not exceed 1000 Newton (N) or 1 kN, but on each test for each wheel on the rear axle that figure was exceeded (1748 N (LHS) and 1149 N (RHS) for test 263; 1460 N (LHS) and 1053 N (RHS) for test 265); and 2. insufficient brake force, on the basis that the maximum brake force measured in kN/tonne for the axle must exceed 3 kN/t and it did not on either test.
It can be noted however that there was brake force measured for each of the brakes on the rear axle in both VIT tests (1628 N (LHS) and 1460 N (RHS) for test 263; 1556 N (LHS) and 1652 N (RHS) for test 265). These brake forces were described by Mr Lawrie as low. This appeared to be consistent with Mr Lawrie's observations of the operation of the rear brakes referred to above.
The evidence did not explain why the VIT test results for both tests recorded an "Overall Result" of "Pass" for axle 2 but "Fail" for axle 1.
Later, Mr Lawrie accepted that the VIT test results indicated only a "slight" brake imbalance on the rear axle and was unsure whether the low brake force affected the significance of the balance figures.
After testing, the bus was placed on safety stands and the brake drums were disassembled. Mr Lawrie observed that on the front brakes the brake linings were adequate for efficient braking but were over adjusted causing excessive brake drag. There was also evidence that the front brakes had been overheated at some point in that the linings were glazed, and the brake drum displayed minor discolouration and minor cracks.
In relation to the rear brakes, Mr Lawrie was of the opinion that they were overdue for repair as the brake linings on both sides were worn well beyond their safe working limits and the rivets had been contacting the brake drum. His view was that this had been so for some considerable period of time in respect of the offside rear brake.
Mr Lawrie described the rear brake linings that he observed as "negligible or no lining height above the rivet. In fact it has started to wear the rivet head" on both sides. Mr Lawrie, at the time of the 6 October inspection, recorded in his notes that, in relation to the rear brake lining thickness, there was "zero friction material above the head of the rivet". It was not clear, however, whether this referred to the near side or off side rear brakes or to the whole of the brake linings or only part of them.
The photographs of the rear brake linings taken at this time showed areas where the linings appeared to be slightly above the tops of the rivets, areas where the linings appeared to be at the same level as the rivets and areas where the linings had apparently disintegrated almost entirely. Some of the photographs are reproduced later in these reasons and they illustrate why Mr Lawrie's notes lacked clarity.
Mr Lawrie accepted that: 1. even after the towing, some brake force was measured on the VIT tests which meant that the brake lining had been forced up against the drum so as to cause friction and, thus, the brake force; 2. from the time of the accident until the bus got to Zetland there was brake force in the rear brakes, but Mr Lawrie did not know whether the brake shoe was in contact with the drum or not; 3. even if the maxi brake was not stopping the wheel from turning entirely, it would create some level of friction if the brake lining was in contact with the drum; and 4. if the vehicle was towed with the maxi brake on and the rear brake lining was in contact the drum then there would, as a result, be some degree of wear of lining as well as other things and, if the bus was towed for approximately 190 km at speeds of up to 80 km per hour, there would potentially be a lot of heat and damage to the brake lining.
Mr Lawrie also accepted in relation to the loss in brake force between the MAHA test results and the VIT test results that: 1. it would have been contributed to by the fact that between the two tests, the bus had travelled approximately 4,000 km and had travelled down a steep incline with the brakes on before the crash; 2. it may have been contributed to by the fact that the bus had been towed on the rear axle with the maxi brake for approximately 190 km at speeds of up to 80 km per hour; and 3. there did not appear to be any other contributing factors.
Although Mr Lawrie did not observe the bus at the scene, he accepted that, if the rear wheels were observed to rotate despite the maxi brake being on, that indicated that "there was no contact between or negligible contact between the lining and the brake drum".
Mr Lawrie also confirmed that an Authorised Examiner might go about satisfying him or herself that a rear brake imbalance had been rectified, without a MAHA roller or VIT, by conducting the sort of decelerometer brake test or rolling test described by Mr Lewry and Mr Dobson.
The motor mechanic who conducted the VIT testing on 6 October 2010 was Mr Thomas Plessas. As at 2010, he had been a motor mechanic for approximately 30 years with a trade qualification and experience as an RTA Inspector Vehicle Regulations, heavy vehicle repair experience and training through the RTA, and operational training on the MAHA and VIT testing units. I accepted his evidence generally, subject to the matter referred to below.
Mr Plessas referred to the VIT testing results and the MAHA testing results which have been set out above. In relation to the MAHA results for the rear axle, Mr Plessas was of the view that, although the level of force applied by the nearside rear brake unit suggested that brake adjustment could be considered a causal factor, when the roller resistance level or drag level was considered the issue of poor adjustment was negated as the brake shoes were not releasing from the drum unit causing a raised level of friction and resistance. This opinion appeared to be different from an opinion expressed by Mr Lawrie to the effect that the rear brake imbalance problem on the bus identified in the MAHA test results was caused by poor adjustment of the braking components.
Furthermore, in Mr Plessas's opinion, the lower level of applied force and high level of roller resistance recorded in the MAHA test results was suggestive of a mechanical issue occurring within the drum brake unit, requiring investigation, not adjustment only in order properly to rectify the functioning of the componentry. His evidence then continued: "Based wholly or substantially on the above knowledge, I am of the opinion that, the defect identified by the Campbelltown HVIS on the 3 May 2010 relating to brake imbalance had not been rectified, and at the time of the vehicle being presented to the HVAIS at Narellan for reinspection and clearance of the defect on the 5 May 2010, the brake shoes fitted to the rear axle assembly were worn past their minimum usable life and the brake imbalance original defect had not been rectified."
This opinion appeared to be based on the results of the MAHA testing alone and to have been arrived at without regard to whether the RTA inspector, or Mr Fassoularis, or Mr Lewry checked the thickness of brake linings on the rear axle and found them adequate, or to whether the bus had passed any decelerometer brake test, or rolling test, carried out on 5 May 2010 by Mr Lewry. In light of my findings elsewhere in this judgment as to the observed state of the rear brake linings on 3 and 5 May 2010, the fact that the bus passed Mr Lewry's decelerometer brake test, the expert opinion of Mr Scott which I accept and the lack of reasoning to explain how Mr Plessas's opinion could be consistent with those findings, I do not accept Mr Plessas's opinion in this regard.
Mr Plessas was also of the view that the MAHA test results indicated that the S cam was still serviceable on 3 May 2010, and not "maxed out" as it was when the VIT test was carried out on 6 October 2010. If this is so, it is probable that the S cam was also serviceable on 5 May 2010, since the bus was only driven 30 km between 3 May and 5 May 2010, and that the problem with the S cam was caused during or after the 4,000 km travelled by the bus between 5 May and 14 May 2010. This was relevant not just to the S cams but also insofar as it suggested that damage could have occurred to other parts of the rear brakes over the approximately 4,000 km travelled.

The expert evidence of Dr Casey and Mr Scott

In addition to the evidence of the expert mechanics who inspected or tested the bus, there were two further experts who gave evidence: 1. Dr Robert Casey called by CIC, who provided two reports dated 29 May 2016 and 26 August 2021. Dr Casey has a Bachelor of Engineering (Hons I) in Mechanical Engineering, a Master of Engineering Science, and a Doctorate in Philosophy. He is a Member of the Institute of Engineers Australia. He has held numerous professional and academic positions, including inter alia: Principal Engineer for RT Casey Pty Ltd; Consultant Engineer for C&M Leussink Engineering (1997-2000); Head of the Internal Combustion Engines Laboratory, University of NSW; Lecturer in the School of Mechanical and Manufacturing Engineering, University of NSW; and Assistant Professor at the Institute of Fluid Science, Tohoku University, Japan. He also has automotive forensic experience, having investigated more than 1500 heavy vehicle accidents, crashes, fires and failures. 2. Mr Philip Scott called by Hallew, whose reports were dated 26 August 2015 and 21 May 2021. Mr Scott holds a Bachelor's degree in Education from the University of Technology Sydney; a Diploma of Teaching (Technical) Sydney; and a Certificate in Automotive Engineering. He is a member of the Society of Automotive Engineers International and Australasia. His consulting practice relevantly involves inspections and assessment of motor vehicles involved in motor vehicle accidents in respect of causation and mechanical condition prior to the accident, and the inspection and assessment of motor vehicles and workplaces in matters relating to repair standards and personal injury. He has investigated and reported in excess of 200 matters.
Their evidence, like that of the other experts in this case, was admitted on the basis that where a report contained evidence other than opinions and other than direct observations by the witness himself, that material was admitted as an assumption only and not as evidence, and where the report contained opinions as to the conclusiveness of evidence or other argumentative material or submissions, that material was to be treated as submissions only and not as evidence.
Dr Casey and Mr Scott participated in an expert conclave on 27 October 2021 in which they addressed 15 questions posed to them and, in relation to those questions, they produced a joint report dated 12 November 2021 which was in evidence. The answers to the questions in the joint report provide a useful and focused summary of the respective experts' opinions on the most relevant topics and I shall generally consider their evidence in these reasons by reference to the answers to those questions, although I have taken into account all of their evidence in reaching my conclusions.

The first parts of question 1 - minimum brake lining thickness

The first parts of question 1 related to the minimum thickness of brake linings considered to be safe before the brake linings required replacement and the minimum thickness required in order for the rear brake linings of the bus to pass the RTA inspection on 3 May 2010. By the conclusion of the hearing, it was clear that there was no dispute that the required minimum thickness of the rear brake linings was 0.8 mm above the rivets by which the lining was fixed to the base plate of the brake shoe. This was consistent with rule 501.01 l) of the RTA HV Inspection Rules, which has been quoted above, and was accepted as correct by both Dr Casey and Mr Scott and the other witnesses with relevant qualifications as heavy motor vehicle mechanics or inspectors.

The last part of question 1 - rear brake lining thickness on 5 May 2010

The last part of the first question was: what was the likely thickness of the brake linings in each of the rear brakes of the bus at the time Mr Lewry cleared the defect notice on 5 May 2010? As noted at the outset, this was the principal, determinative issue in this case.
Dr Casey was of the opinion that it was far more likely than not that the rear brake linings' thickness on 5 May 2010 was similar to their thickness after the crash. Mr Scott's opinion was that the rear brake linings on 5 May 2010 would have been in the same condition as they were when they were inspected on 3 May 2010 by the RTA Inspector.
In essence, Dr Casey worked backwards from the state of the rear brake linings inspected on 6 October 2010 and argued that nothing that occurred after Mr Lewry's inspection on 5 May 2010 and before the inspection on 6 October 2010 would have been likely to have led to any substantial change in the rear brake linings.
By way of contrast, Mr Scott essentially worked forward from the state of the rear brake linings when they are inspected on 3 May 2010 and argued that nothing that occurred between 3 May 2010 and Mr Lewry's inspection on 5 May 2010 would have been likely to have led to any substantial change in the rear brake linings. Mr Scott responded to Dr Casey's arguments and noted that Dr Casey's conclusion did not take into account the relevant use of the bus and the potential wear on the rear brake linings between 5 May 2010 and 6 October 2010, including the 4,000 km approximately travelled between 5 May and 14 May 2010.
The specific arguments raised by Dr Casey and responded to by Mr Scott reflected the assumptions made by the experts in preparing their reports and these included only some and not all of the relevant circumstances that were disclosed in the evidence. Accordingly, it is not helpful to set out at this point the specific details of Dr Casey's and Mr Scott's arguments, in addition to what is outlined above, as these will be considered below as part of my consideration of the factual issue of what was the likely thickness of the rear brake linings on 5 May 2010.

Question 2

The second question concerned the condition of the rear brakes (including brake linings, slack adjuster, pushrod and brake shoes) of the bus: (i) on 3 May 2010; (ii) on 5 May 2010; and at the time of the accident on 14 May 2010. As is obvious, this question overlapped to some extent with the last part of question 1.
As to the condition of the rear brakes on 3 May 2010: 1. Dr Casey was of the view that the brake linings were in essentially the same condition on that date as they were after the accident and he did not know what condition the other brake components were in, including their adjustment, since there was no information on which to base his response; and 2. Mr Scott was of the view that the only evidence available was that on 3 May 2010 the brake linings passed the RTA inspection.
As to the condition of the rear brakes on 5 May 2010: 1. Dr Casey's opinion was that on that date the brake linings were in essentially the same condition as they were after the accident and that the adjustment of the other brake items was likely to be appropriate, since they were readjusted prior to Mr Lewry's inspection by Mr Fassoularis; and 2. Mr Scott's opinion, in substance, as I understood it, was that the brake linings were in essentially the same state as they were on 3 May 2010.
As to the condition of the rear brakes at the time of the accident on 14 May 2010: 1. Dr Casey was of the opinion that the angles of some of the pushrods and slack adjusters were excessive and the rear brake linings were decrepit and well below the minimum safe thickness, as depicted in photographs taken by the police after the accident; and 2. Mr Scott was of the opinion that immediately before the accident the condition of the brake components and each wheel was unknown because there was no available evidence of vehicle usage and the type of terrain the vehicle had traversed since 3 May 2010.

Questions 3, 4 and 5

The third, fourth and fifth questions related to whether the bus was safe to drive on the road and the responsibilities of an Authorised Examiner under the AIS Business Rules and an RTA inspector under the RTA HV Inspection Rules.
As to the responsibilities of an Authorised Examiner such as Mr Lewry, the experts were relevantly agreed and, as I understood it, it was accepted by the parties that if Mr Lewry had seen that the rear brake linings were less than the required minimum thickness, namely less than 0.8 mm above the rivets, he should have concluded that the bus was unsafe to be driven and declined to clear the bus, and he should have advised G&S Mini Bus that the bus was not safe to be driven. Mr Scott commented that this depended on what Mr Lewry could actually observe through the inspection ports. It can be noted here that the tell tale would have to be relied upon to give an indication of the level of brake lining remaining because the rivets could not actually be seen without disassembling the brake drum, which was not required.
As to the responsibilities of an RTA inspector such as the inspector who completed the vehicle defect notice in respect of the bus on 3 May 2010, the experts were relevantly agreed and, as I understood it, it was accepted by the parties that if the RTA inspector had seen that the rear brake linings were less than the required minimum thickness, namely less than 0.8 mm above the rivets, the bus was unsafe to be driven and the inspector should have defected the bus on the basis of inadequate brake linings and advised G&S Minibus that the bus was not safe to be driven. In addition, Mr Scott said that the RTA inspector had an obligation to inspect the braking system on the vehicle thoroughly as specified in rule 501.01, including assessing the thickness of the brake linings. He also commented that the RTA had the facilities to inspect the braking system of a heavy vehicle thoroughly, including by placing it over a pit for easy access to underside components.

Question 6

Question 6 concerned the nature of the inspection or testing required to be undertaken by an Authorised Examiner in order to clear a brake imbalance defect.
Dr Casey was of the opinion that it would be necessary in such a case either: (i) to use a brake test machine capable of individually testing the brakes on each side of an axle; or (ii) physically testing or inspecting all aspects of the brakes that can potentially impact on a brake imbalance including: 1. verification of the gaps between the brake linings and the brake drum are small and even on both sides; 2. verification that the angle between the pushrods and the slack adjusters are close to 90° on both sides, with the brakes applied; 3. verification that there are no air leaks; 4. verification that the thickness of the brake linings is not so thin that the linings can allow the brake chamber to "bottom out" or the S cams to over rotate; 5. verification that the pushrod stroke is not excessive; and 6. verification that the thickness of the brake linings is appropriate for safe braking.
On the other hand, Mr Scott's opinion was that only a dynamic test was required together with the use of brake test equipment approved for the particular inspection station. Relevantly in this case, the test should have been conducted in accordance with rule 501.09 "Service Brake Test with a Decelerometer" (which has been quoted above). Mr Scott described the required test as follows: "The required test involves placing the decelerometer securely in the vehicle with a load cell attached [to] the brake pedal. The vehicle is driven to the approved brake test area where the test is carried out. The vehicle is driven to a speed of at least 30kph and the brakes applied in one sustained and steady action bringing the vehicle to a halt. Then, subject to the vehicle achieving a pass result as per the decelerometer, an inspection of the road surface will enable a determination to be made relating to the brake balance. …".
In substance, what Mr Scott described was the decelerometer brake test which Mr Lewry said was part of his usual practice for clearing brake imbalances and the rolling test which Mr Dobson said was a "great test" for determining brake imbalance. The other things involved in Mr Lewry's usual practice for clearing brake imbalances corresponded to a substantial extent with the alternative list of checks that Dr Casey said ought to be carried out.

Questions 7 and 8

The seventh and eighth questions related to whether: (a) the RTA inspector on 3 May 2010; and (b) Mr Lewry, if on 5 May 2010 he followed his usual practice when inspecting the bus, would have seen the thickness of the rear brake linings and whether it was below the recommended minimum. Dr Casey and Mr Scott agreed that the answer to both aspects of each of questions was "yes", noting that the RTA inspector and Mr Lewry would have seen only the section of the brake lining exposed by the inspection port.
Mr Scott added that, in Mr Lewry's case, this was subject to his being able to gain sufficient access to the inspection ports to sight the brake linings due to the restricted area where the ports are located. In the RTA inspector's case, Mr Scott said that the inspector would have had the facilities thoroughly to inspect the brake system of the bus including by placing it over a pit for easy access to underside components.

Question 9

Assuming that the bus travelled 30 km between the RTA inspection on 3 May 2010 and Mr Lewry's inspection and testing on 5 May 2010, both experts were agreed that no material change in the condition of the brake linings would have been observed between those two dates.

Question 10

The tenth question involved a number of sub-questions concerning the potential deterioration of the brake linings over certain periods based on the assumptions that: 1. the bus was fitted with an Alison automatic transmission; 2. the retarder was disconnected; 3. between 5 May 2010 and the accident on 14 May 2010, the bus had driven 3,994 km; and 4. the terrain over which the bus was driven in that 3,994 km included steep descents.
Dr Casey was of the opinion that, on those assumptions, the brake linings could not have deteriorated due to the manner in which, and the terrain over which, the bus was driven in the 3,994 km from having sufficient thickness on either of 3 May 2010 or 5 May 2010 to not having sufficient thickness on 14 May 2010. His explanation was that this was so because in all likelihood the condition of the brake linings, front and rear, after the accident on 14 May 2010 was essentially the same as their condition around the time of the RTA inspection on 3 May 2010, for the reasons already given in relation to question 1.
Mr Scott was of the opposite opinion and, in substance, he accepted that the manner in which, and the terrain over which, the bus was driven when travelling the 3,994 km could lead to the deterioration of the brake linings from being sufficient on 3 and 5 May 2010 to being insufficient on 14 May 2010.

Questions 11 to 15

Questions 11 to 15 concerned causation of the bus crash on 14 May 2010. By the conclusion of the evidence and in final submissions, there was in effect no dispute that if the rear brake linings did not comply with the minimum requirements at 5 May 2010 and Mr Lewry had failed to take reasonable care in inspecting the rear brake linings on that date, the state of the brake linings and Mr Lewry's failure would have causally contributed to the bus crash. Consequently, there was no relevant issue between the parties as to causation and it is not necessary to consider this aspect of the matter any further in relation to liability.

Cross examination of Dr Casey and Mr Scott

Apart from some limited cross examination of Dr Casey in relation to his expertise concerning the RTA's Rules for Authorised Inspection Stations - Heavy Vehicles Issue 2 - June 2002 and the AIS Business Rules, Dr Casey and Mr Scott were cross examined concurrently.
Given that one of the most significant issues in this case was the state of the rear brake linings when they were examined by Mr Lewry on 5 May 2010, the cross examination of these experts focused on the answer to the last part of the first question and touched upon other questions to a more limited extent.
As noted above, in relation to the last part of the first question, Dr Casey was relevantly of the opinion that it was likely that the rear brake linings' thickness on 5 May 2010 was similar to their thickness after the accident. Mr Scott was of the view that on 5 May 2010, the rear brake linings would have been essentially the same as when they were inspected by the RTA on 3 May 2010.
In cross examination, Dr Casey clarified that he assumed, in reaching his conclusion, that no damage to the brake linings was caused by the towing of the vehicle from the crash site to Albion Park and from Albion Park to Zetland. He said this was based on Mr Batovac's observation that the park brake was inoperative on the morning of 14 May 2010 and the fact that, at the scene, the front brakes were hot to touch, appeared blue and there was a smell, but the rear brakes did not have those indicators. Later he agreed that another assumption he made was that when the bus was pulled up the slope the rear wheels were capable of rotating, apparently without restriction, the airlines were damaged, and the maxi brake was on. On those assumptions, his opinion was that the towing had negligible effect in terms of the condition of the rear brakes.
Dr Casey accepted, however, that he would need more information from Mr Batovac before he could conclude that the rear service brake was not working on 14 May 2010 and that he had no information as to whether the bus went back to the depot after Mr Batovac's observation and was repaired. He also accepted that there could have been some contact between the brake linings and the drums after the crash but he, in effect, assumed no retardation and no degree of braking effect.
Eventually, Dr Casey agreed, in effect, that if the bus in this case was towed over 190 kilometres, at up to 80 km per hour, with the rear wheels on the road, the maxi break applied and finished with rolling resistance and brake force results shown in the VIT test results, the towing would have done damage, but the extent of the damage would be a question of degree. He also accepted that to determine the degree of damage it would be necessary to know the state of the linings at the beginning and end of the towing. He also accepted that any damage caused by towing could have been avoided by the use of cage bolts, which did not occur in this case.
In addition, Dr Casey agreed in effect that in reaching his opinions he assumed that the approximately 4,000 km of travel between 5 May and 14 May 2010 had no significant effect on the brake linings but without knowing what happened to the bus, when it was serviced, or how or where it was driven during that period, which he accepted would have been useful to know. Nonetheless, he also accepted that the rear brake linings would have had to be at least 8.8 mm thick (that is approximately 0.8 mm above the rivets) to pass the RTA inspection on 3 May 2010 and that the linings could have worn 0.8 mm between that date and when they were inspected on 6 October 2010. Adopting the information Mr Dobson referred to that, as a rule of thumb, "a normal serviceable brake" might wear 0.4 mm of brake lining per 1,000 km, Dr Casey accepted that travelling 4,000 km could have led to brake lining wear of 1.6 mm, without even taking into account the effect of the accident itself, or the towing, or the fact that the retarder was disconnected (which meant that the service brakes on the bus did not have the braking assistance which would usually be provided by the retarder).
Dr Casey also accepted, in effect, that he had previously given evidence in other proceedings relating to the bus crash that, after being made aware of the MAHA test results: 1. if the MAHA test results on 3 May 2010 were significantly different from the results of the VIT testing on 6 October 2010 after the accident, that would indicate that the brakes were not in approximately in the same state on 3 May as on 6 October 2010; and 2. if the state of the brakes on 3 May 2010 was as indicated by the MAHA test results, there would have had to be significant deterioration in the following 10 to 12 days, if his opinion as to the state of the rear brakes on 14 May 2010 were to be accepted.
Notwithstanding these revisions or qualifications to his opinions in light of the MAHA test results, Dr Casey acknowledged that he had not written any supplementary report recording any revisions or qualifications to his opinions based on the further information provided by the MAHA test results from 3 May 2010.
Further, in cross examination, Dr Casey expressed the opinion in relation to the rear brake lining which was observed on 6 October 2010 to have broken up, that there was no evidence as to when it broke up and he specifically accepted that he did not know whether it was broken up when Mr Lewry inspected the brakes on 5 May 2010. In the end, Dr Casey said it was highly unlikely that it had broken up at the time of the RTA inspection on 3 May 2010 and accepted that this meant that the breaking up of the rear brake lining happened sometime after Mr Lewry inspected it.
Dr Casey also agreed in effect that his opinion was based, at least in part, on his view that the police photographs of the rear brake linings on 6 October 2010 showed that they were much less than 8 mm thick and, according to his first report, he assumed that they were only 3-4 mm thick. There was, however, no evidence of any such precise measurement of 3-4 mm thickness being made of the rear brake linings to support this assumption. He accepted that if the brake linings were in fact 8 mm thick, or were at or about the level of the rivet head, his theory or opinion was incorrect.
In the cross examination, Mr Scott questioned the reliability of the observations of the front brakes at the crash site and was not prepared to draw conclusions based on uncertain or unknown information. He also noted that the blue bloom on the outside of the front brake drums could have been caused weeks, months or years before, and that there was no evidence to suggest at what precise time it occurred. Mr Scott said that, in relation to what Mr Batovac noticed on the morning of 14 May 2010 concerning the maxi brake, there were a number of faults that could occur which meant that the maxi brake did not operate but the rear service brakes remained operative.
Mr Scott accepted that if Mr Dobson could turn the rear wheels by hand with the maxi brake applied when the wheels were off the ground, then the brakes were having zero or little effect by that time. Mr Scott did not accept, however, that the rear brakes would have been in a similar state on the morning of 14 May 2010 to their state after the accident "because the damage done to those brakes going down the approximate 5 to 6 kilometres of steep descent, going down that mountain with a driver trying his hardest to stop it, so standing on the brakes, there would have been enormous amount of wear, heat, and subsequent breakup of the brake linings on those rear brakes." Further, even on the assumption that the rear brakes were not working at the top of the descent to the crash site, Mr Scott refused to accept that there was no prospect that the rear brake linings could have been at the acceptable level on 5 May, 4,000 km earlier. He explained his reasons in two passages in cross examination: "On the balance of probabilities I couldn't answer that until I knew the nature of use and the goods it was carrying at the time, where it went, all that information is necessary to call, call a judgment on the condition of the brakes prior to going down the hill whether they were in that condition during that or, or were reduced to that condition within the 4,000 kilometres. You cannot answer that question without knowing a) how much weight the vehicle was carrying, where the vehicle was driven, you just, just do not know. … That damage is likely, depending upon the conditions, to have happened in that 4,000 kilometres. That's what I'm trying - I'm saying that the damage has happened or possibly happened, probably happened in the - within that 4,000 kilometre distance travelled."
Having reviewed the evidence and made certain findings as to what occurred, I now turn to consider what findings should be made as to the state of the brake linings on 5 May 2010.

State of the rear brake linings on 5 May 2010

As has been noted above, the determinative issue in the present case is whether the rear brake linings on 5 May 2010 were at least 0.8 mm above the rivets by which the linings were attached to the base plate of the brake shoes and thus were not liable to be defected in accordance with the RTA HV Inspection Rules and did not render the bus unsafe to be driven on the road.

The state of the bus's brakes prior to it being owned by G&S Mini Bus

The evidence concerning the state of the bus's brakes and the wear on the brake linings when it was owned by Steve's Minibus & Tours in 2007 and 2008 provided no substantial assistance in determining the state of the rear brakes in 2010, notwithstanding that some use was sought to be made of that information to estimate rates of wear of brake linings on the bus. I found that this information was of little or no assistance essentially because the meaning of the service records in relation to the brake linings, which have been set out above, was not explained by the persons who made the records and was otherwise so unclear that it did not provide a useful basis for estimating rates of wear of brake linings. In addition, even if the service records had been clear, there was no information as to the use of the bus during those years, the loads the bus carried, the terrain and roads over which it travelled or whether the retarder was operational, which would have been necessary in order to understand properly the significance, or otherwise, of the rates of wear that might be calculated.

The RTA vehicle defect notice and the MAHA test results

In the absence of service records for the bus while it was owned by G&S Mini Bus in 2009 and 2010, the first piece of evidence which could provide useful information was that contained in the vehicle defect notice issued on 3 May 2010 after the registration inspection of the bus by an RTA inspector at Campbelltown Heavy Vehicle Inspection Station and the MAHA test results obtained as part of that inspection. The inspector who carried out the inspection was not called by either party to give evidence.
CIC submitted that, since Hallew did not call the inspector, an inference should be drawn that his evidence would not have assisted Hallew's case, relying on the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9. The application of that principle has two potential results. First, the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness and, secondly, the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn: Manly Council v Byrne [2004] NSWCA 123 at [51] (Campbell J, Beazley JA and Pearlman AJA agreeing).
Whether the principle could or should be applied, however, depends on a number of factors including whether the absent witness would be expected to be called by one party rather than the other: Payne v Parker [1976] 1 NSWLR 191 at 201 (Glass JA - although his Honour dissented as to the application of the principles to the facts, his judgment has been widely recognised as stating correct legal principles: Manly Council at [53]).
The nature of the expectation that one party would call the witness rather than the other was further explained by Glass JA in Payne at 201-2 in the following terms: ""The first condition [the expectation that the missing would be called by one party rather than the other] is also described as existing where it would be natural for one party to produce the witness: Wigmore, par 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v Reichard [1975] VR 916, at p. 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid [1975] VR 916, at p. 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid [1975] VR 916, at p. 920, Regina v Burdett (1820) 4 Barn & Ald 95; 106 ER 873, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital [1974] VR 722, at p. 733, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid [1974] VR 722, at p. 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid [1974] VR 722, at p. 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid [1974] VR 722, at p. 728. Evidence capable of satisfying this condition has been held to exist in relation to a party's foreman: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; his safety officer: Earle v Castlemaine District Community Hospital [1974] VR 722; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O'Donnell v Reichard [1975] BR 916, at p. 921."
In the circumstances of the present case, the RTA inspector was equally available to each party, the inspector's knowledge was not to be regarded as the knowledge of Hallew rather than that of CIC (through its insured, G&S Mini Bus), and it was not more natural for Hallew to call that witness than for CIC to do so. The inspector's position was analogous to that of a police officer, as referred to in the passage quoted from Payne. For these reasons, in my view, the condition for the principle in Jones v Dunkel to apply "stands unsatisfied" (to adopt the language of Glass JA in Payne). Accordingly, I did not consider it appropriate or warranted to draw any inference that the RTA inspector's evidence would not have assisted either party in this case nor do I draw any inference with greater confidence unfavourable to either party because the RTA inspector was not called.
There was no evidence which suggested that the RTA inspector did not carry out a registration inspection of the bus on 3 May 2010, including the relevant brake checks and tests specified in rule 501 of the RTA HV Inspection Rules (relevant portions of which have been quoted above), or that the inspector failed to record the results of the inspection accurately in the vehicle defect notice. In fact, the MAHA test results demonstrated that some testing was carried out on 3 May 2010. In addition, based on Mr Scott's evidence, I accept that the RTA's Heavy Vehicle Inspection Station where the registration inspection was carried out had facilities that allowed the inspector to inspect the braking system thoroughly including by placing the bus over a pit for easy access to underside components including the brake drums and the inspection ports.
In the circumstances, and having regard to the objectives of the inspection in rule 500 and the requirements of rule 501, and to the vehicle defect notice dated 3 May 2010 together with the MAHA test results, the most probable conclusion appeared to me to be that: 1. the inspector on 3 May 2010 carried out the tests and checks relevantly required under rule 501, including the checks specified in pars 501.01 and 501.13; and 2. the inspector found that there was no reason for rejection as listed in pars 501.01 l) relating to the requirement that the brake linings be not less than 0.8 mm above the rivets which fastened the lining to the backing plate of the brake shoe; but 3. the MAHA roller brake testing under rule 501.13 indicated that there was more than 30% difference in the brake force between the wheels on axle 2, the rear axle.
Accordingly, unless there was other evidence indicating that this could not be so, I was comfortably satisfied on the balance of probabilities that, on 3 May 2010, the brake linings in the rear brake drums of the bus were not less than 0.8 mm above the heads of the rivets and that the only brake defect which was required to be cleared was the rear brake imbalance.

Mr Fassoularis's evidence concerning his work on 3 May 2010

This conclusion in relation to the state of the brake linings on 3 May 2010 was confirmed in my view by Mr Fassoularis's evidence, which has been set out above. In summary, Mr Fassoularis said that on 3 May 2010 he checked the brake linings through the inspection ports and assessed that there was sufficient useable lining on each brake shoe and that they were acceptable until the next service. Once again, in the absence of evidence indicating that Mr Fassoularis could not have made such an assessment, I would be satisfied that his evidence should be accepted.
From this evidence and provided there was no other evidence which tended to preclude such a finding on the balance of probabilities, I was satisfied that on 3 May 2010 there was at least 0.8 mm of lining above the rivets and probably somewhat more than the minimum thickness of useable lining on each rear brake shoe of the bus based on what could be observed through the inspection ports and the tell tales.

The difference, if any, between the rear brake linings on 3 May and 5 May 2010

The bus was only driven about 30 km between the RTA inspection on 3 May 2010 and Mr Lewry's inspection and testing on 5 May 2010. All the relevant witnesses were agreed that travelling 30 km, between the Heavy Vehicle Inspection Station, the depot where Mr Fassoularis worked on the bus and Hallew's Narellan inspection station, would not have caused there to be any material difference between the condition of the rear brake linings on the bus on 3 May 2010 compared with their condition on 5 May 2010. In these circumstances and having regard to the evidence concerning the RTA inspection and Mr Fassoularis's evidence, it would follow that, on 5 May 2020, the rear brake linings were at least 0.8 mm above the rivets and there was probably something more than the minimum thickness of useable lining, unless other evidence indicated to the contrary on the balance of probabilities.

Mr Lewry's evidence concerning the inspection on 5 May 2010

This position is further confirmed by Mr Lewry's evidence that: 1. on 5 May 2010 as part of his usual practice he would have slid under the vehicle using a creeper with a torch and checked, among other things, the rear brake linings through the inspection ports; 2. if he had observed that a brake lining was worn down below 0.8 mm above the top of the rivets, he would not have cleared the defect notice because to do so would put an unsafe vehicle on the road; and 3. he cleared the defect notice on 5 May 2010 thus allowing the bus to be driven on the road.
Once again, provided that there was no other evidence which indicated that Mr Lewry's evidence was probably not correct, I was satisfied that Mr Lewry did inspect the rear brake linings through the inspection ports, to the extent he was able to, on 5 May 2010 and, on inspection, he did not observe that the rear brake linings were below 0.8 mm above the rivets as revealed by the tell tales.

Was there other relevant evidence sufficient to displace the conclusion that there was at least 0.8 mm of lining above the rivets on 5 May 2010?

The issue then became whether there was evidence which indicated, on the balance of probabilities: (a) that the evidence of the vehicle defect notice and MAHA test results, Mr Fassoularis's evidence, Mr Lewry's evidence and the certified clearance of the vehicle defect notice should not be accepted and relied upon to reach the conclusion that on 5 May 2010 the rear brake linings were not below 0.8 mm above the rivets; and (b) that the contrary conclusion should be reached.
In substance, the contrary evidence was said to be: 1. the evidence of Mr Lawrie and Mr Plessas as to the state of the rear brake linings observed when the rear brake drums were disassembled and inspected by them on 6 October 2010 and the photographs taken of the rear brake linings on that occasion; 2. the results of the VIT testing conducted at Zetland on 6 October 2010; and 3. Dr Casey's opinion that it was far more likely than not that the thickness of the rear brake linings on 5 May 2010 was similar to their thickness after the crash and as observed on 6 October 2010.
There was no dispute as to what Mr Lawrie and Mr Plessas observed on their inspection of the rear brakes of the bus at Zetland on 6 October 2021, or as to the photographs taken during by the Engineering Investigation Unit while the vehicle was at Zetland, which were included in Ex D. I accepted this evidence. Accordingly, I found that on 6 October 2010 in some places the rear brake linings had disintegrated entirely, in some places they were level with the rivets which had been scored as a result of coming into contact with the brake drums and in some places they were slightly above, and probably more than 0.8 mm above, the rivets. This is illustrated in four of the photographs of the rear brake linings taken on 6 October 2010 which are figures 10, 11, 12 and 13 below. Figure 10 (Ex D image 29) Figure 11 (Ex D image 30) Figure 12 (Ex D image 38) Figure 13 (Ex D image 39)
There was also no dispute as to the results of the VIT testing on 6 October 2010, as recorded in figure 9 above. I accepted Mr Lawrie's observation during his inspection at Zetland that there was movement of the rear wheels sensed and there was retardation of movement experienced when the brakes were applied, but that the brakes did not stop the rear wheels rotating entirely when rotational force was applied to them, as they would if the brakes were operating normally. This was confirmed by the VIT test results which measured brake force for each of the brakes on the rear axle, but those brake forces were below the minimum brake force required for safe operation. I inferred that Mr Lawrie's observations and the VIT test results were the consequence of the brake linings coming into contact to a limited extent with the rear brake drums when the brakes were applied, but there was insufficient friction to cause the brake drums and the rear wheels to which they were attached to stop rotating entirely.
Furthermore, based upon this and the evidence as a whole, I found it more probable than not that: 1. even after the towing, some brake force, albeit inadequate for safe operation, was being applied by the rear brakes and this was because the brake linings were being forced up to some extent against the drums so as to cause friction and thus to produce the brake force; 2. even if during towing the maxi brake was not stopping the rear wheels from turning entirely, the rear brakes would have created some level of friction as a result of the brake linings being in contact to a limited extent with the rear brake drums; and 3. since, after recovery from the bush, the bus was towed with the maxi brake on for approximately 190 km at speeds of up to 80 km per hour and the rear brake linings were in contact, at least to a limited extent, with the drums, the towing generated a significant amount of heat and damage to the rear brake linings.
I pause at this point to note that winding off the maxi brake prior to recovery and using cage bolts while towing were methods of preserving the integrity of the rear brake linings, after the crash, so that the state of the linings would not be altered from their state immediately after the crash, on later inspection, measurement and scientific testing. In my view, there was no convincing reason given for not winding off the maxi brake and not using cage bolts in this case. Mr Dobson's evidence was that he did not have the maxi brake wound off prior to extraction of the bus from the bush because he wanted to be able actually to observe what happened as the recovery team pulled the bus back up the hill. The extraction process involved the potential for damage to various components of the rear braking system of the bus. The fact that he was enabled to observe that the rear wheels rotated relatively freely and could be turned by hand at some point during or after the recovery process was unlikely to assist any rigorous, scientific investigation of the state of the brakes immediately after the accident and before extraction. Similarly, not using cage bolts and towing the bus with the rear wheels on the roadway with the maxi brake applied had the potential to for the components of the rear braking system of the bus to be damaged further. Unless it was clearly established by reliable testing that the rear brake linings were not in contact with the brake drum at all, and could not come into contact, during towing, it is difficult to understand why cage bolts were not used to preserve the integrity of the rear brake linings for future measurement and scientific testing in this case.
Since the maxi brake was not wound off before the bus was extracted from the bush and cage bolts were not used during towing, I was not prepared to conclude on the balance of probabilities that the state of the rear brake linings immediately after the crash was the same, or substantially the same, as their state when examined and tested on 6 October 2010. In particular, the recovery process involved dragging the bus with the maxi brake applied more than 40 metres through the bush, over rough ground and vegetation, and up an incline back to the roadway. In this situation and on the evidence available, I was not satisfied on the balance of probabilities that no significant damage to the rear brake linings could have occurred during that process. Furthermore, having regard to the evidence as a whole, I found that towing the bus from the crash site to Albion Park and then to Zetland caused some more than minimal damage to the rear brake linings, although I was not able to reach any reliable conclusion as to the extent of that damage.
Finally, between the MAHA testing on 3 May 2010 and the VIT testing on 6 October 2010, there was a very significant loss of brake force for each wheel on the rear axle of the bus. Between 3 May 2010 and 5 May when the bus was examined by Mr Lewry, the bus only travelled 30 km and this would have made no material difference to the state of the rear brakes, including the linings. After Mr Lewry cleared the defects on 5 May 2010 and before the crash on the evening of 14 May 2010, the bus travelled approximately 4,000 km. Apart from the fact that the bus had been driven to Bondi Beach on the morning of 14 May 2010 and at some later time travelled from the Sydney area to the Southern Highlands and then made the steep descent down Moss Vale Road towards Kangaroo Valley before crashing through the guardrail into the bush, there was no information from which the nature and extent of brake usage during those 4,000 km could be inferred. After the bus was recovered, it was towed with the maxi brake on and without cage bolts for approximately 190 km to Zetland. In the absence of any significant use of the bus between 3 and 5 May 2010 and in all the circumstances, I concluded on the balance of probabilities that the very significant loss of rear axle brake force occurred after 5 May 2010.
I also found, principally based on the evidence of Mr Lawrie and Mr Scott, that the state of the rear brake linings on 6 October 2010 and the very significant loss of rear brake force, were likely caused by a combination of factors including the crash, the extraction and the towing of the bus and the following factors which occurred before the crash: 1. after the RTA inspection and MAHA testing and Mr Lewry's examination, and before the crash, the bus covered approximately 4,000 km; and 2. immediately before the crash, the bus had travelled down a steep incline with the brakes applied.
The extent of the effect of these factors on the state of the rear brake linings and thus on the brake force exerted by the rear brakes depended on how, when and where the bus's brakes had been used over those 4,000 km and during the descent and how effective the brakes were during those times, about which there was only extremely limited evidence. The effectiveness of the rear brakes were also probably affected by the adjustment of other mechanical elements such the S cams, slack adjusters and pushrods, about which there was little if any significant evidence in relation to the period after 5 May 2010 and before the crash on 14 May 2010.
Having regard to all the evidence, I accepted that after the bus had travelled 4,000 km, including down a lengthy steep descent immediately before the crash, the rear brake linings were probably in a materially worse condition than they were in on 5 May 2010, before that distance had been travelled. I could not, however, determine on the balance of probabilities the precise extent to which their thickness might have been reduced between 5 and 14 May 2010.
The rear brake linings only had to be at least 0.8 mm above the rivet heads in order not to be defected under rule 501.01 l) of the RTA HV Inspection Rules at the RTA registration inspection on 3 May 2021. The information, which Mr Dobson agreed might be used as a rule of thumb, that normal serviceable brakes might wear at the rate of 0.4 mm per 1,000 km, indicated that the rear brake linings might have worn in the order of 1.6 mm as a result of the 4,000 km travelled between 5 and 14 May 2010. Thus, it was possible for the rear brake linings to have been thick enough to pass the RTA registration inspection on 3 May 2010 and yet be below the level of the rivets immediately before the crash on 14 May 2010.
The final aspect of the evidence that might establish that the rear brake linings were not more than 0.8 mm above the level of the rivets on 3 and 5 May 2010 was Dr Casey's opinion that it was far more likely than not that the thickness of the rear brake linings on 5 May 2010 was similar to their thickness after the crash and as observed on 6 October 2010. If Dr Casey's opinion were accepted, it would follow that it was more probable than not that, as at 5 May 2010 (and 3 May 2010), the brake linings were decrepit (to use Dr Casey's word) and in certain places where they had not disintegrated entirely would not have been sufficient to meet the requirements of rule 501.01 l) of the RTA HV Inspection Rules.
The assumptions upon which Dr Casey's opinion was based were clarified in cross examination. The assumptions included, most significantly, that: 1. no damage to the brake linings was caused by the towing of the vehicle from the crash site to Albion Park and from Albion Park to Zetland essentially because before the crash the rear brakes were not operating, having regard to: 1. Mr Batovac's observation that the park brake was inoperative on the morning of 14 May 2010 and thus the rear brakes were not operating immediately before the crash; 2. after the crash, the front brakes were observed at the scene to be hot to touch, appeared blue and there was a smell, but the rear brakes did not have similar indicators of brake use; 3. when the bus was in effect pulled up the slope the rear wheels were capable of rotating, apparently without restriction, even though the airlines were damaged and the maxi brake was on; 1. the approximately 4,000 km of travel between 5 May and 14 May 2010 had no significant effect on the rear brake linings; and 2. the photographs of the rear brake linings taken on 6 October 2010 showed that their thickness was well below 8 mm above the base plate and it was only 3-4 mm.
As to the first assumption above, Dr Casey accepted in cross examination that he would need more information from Mr Batovac before he could conclude that the rear service brake, as opposed to the maxi brake, was not working on 14 May 2010. Dr Casey also accepted that there can be circumstances where the maxi brake does not work but the rear service brake does. In addition, Dr Casey did not dispute that he had no information as to whether the bus went back to the depot after Mr Batovac's observation and was repaired. There was no such additional information provided in the evidence before the Court and, as a result, I did not accept that Mr Batovac's observation established that the rear service brake was not working, fully or partially, when the bus was driven down Moss Vale Road on 14 May 2010.
Further in relation to the first assumption, there was evidence that the front brakes were still hot when inspected hours after the crash, they smelt and appeared blue, but the rear brakes were cooler and did not smell. These observations, however, lacked scientific rigour and did not involve any precise measurements of temperature or consideration of the effect of the ambient temperature over the time between the crash and the observations or of whether the blue bloom observed was caused immediately before the crash or at a much earlier time. Mr Scott's opinion was to the effect that the front brakes may well have been responsible for most of the braking effect during the descent down Moss Vale Road and that the rear brakes may also have been operating but to a lesser extent. Having regard to the evidence as a whole, including the results of the VIT test, I was not prepared to conclude on the balance of probabilities, based on the observations of the front and rear brakes at the scene many hours after the crash, that the rear brakes had not been working at all, or to any significant extent, during the bus's final descent to the crash site. It does not follow from this, however, that little if any damage to the rear brakes could be found to have occurred as a result of the approximately 4,000 km travelled between 5 and 14 May 2010. Rather, what follows is that it cannot be concluded that so much damage to the rear brakes occurred as a result of the 4,000 km travelled that they were not working at all, or to any significant extent, during the descent down Moss Vale Road.
Further, in relation to Dr Casey's first assumption, I have two difficulties with Mr Dobson's and Sen Const Hamilton's evidence about seeing the rear wheels rolling or being able to be rotated by hand during or after the recovery process. The first is that from this evidence it was not possible to know: 1. the extent to which the rear wheels were in contact with the ground when the bus was being winched out of the bush or whether they skidded or rolled with significant resistance before rolling with little or no resistance; and 2. precisely at what point during or after the recovery operation Mr Dobson made his observations of the rear wheels and brake components.
In addition, there was no reliable evidence as to what precise brake force the rear brakes of the bus were capable of exerting immediately after the crash, because there was no relevant scientific testing and measurement of the brakes with the brake linings and other components in the state they were in immediately after the crash.
The second is that there were methods of ensuring the integrity of the brake linings during and after the extraction of the bus from the bush, so that meaningful scientific testing could be carried out after recovery and towing, namely winding off the maxi brake and using cage bolts, but these methods were not used. As noted above, I did not find Mr Dobson's explanation as to why these methods were not used particularly convincing.
In the absence of reliable testing and measurement before or immediately after the bus was extracted from the bush, I was not prepared to find on the balance of probabilities that the rear brakes of the bus with the maxi brake applied generated no brake force whatsoever during the extraction process and during towing, or that there was no contact at all between the rear brake linings and the brake drums during those processes. Nor was there any reliable evidence which would permit a finding to be made on the balance of probabilities as to the thickness or state of the rear brake linings immediately after the crash and before the extraction and towing.
Indeed, Dr Casey eventually accepted, in effect, that if the bus was towed over 190 kilometres, at up to 80 km per hour, with the rear wheels on the road, the maxi brake applied and the bus's rear brakes having the rolling resistance and brake force shown in the VIT test results, the towing would have done damage to the rear brakes but the extent of the damage would be a question of degree. He also accepted: (a) that to determine the degree of damage, it would be necessary to know the state of the linings at the beginning and end of the towing; and (b) that any damage caused by towing could have been avoided by the use of cage bolts, which did not occur in this case. As has been explained, there was no reliable or precise evidence as to the state of the rear brake linings at the beginning of the towing.
Finally, in relation to Dr Casey's first assumption, even considering all of the matters upon which he relied in combination, given my findings I was not satisfied that the factual foundation for Dr Casey's first assumption was established on the balance of probabilities.
As to Dr Casey's second assumption, that the approximately 4,000 km travelled between 5 May and 14 May 2010 had no significant effect on the rear brake linings, he accepted in cross examination that this assumption was made without knowing what happened to the bus, whether it was serviced or how or where it was driven during that period, which he also accepted would have been useful to know. In addition, Dr Casey accepted that the rear brake linings could have worn 0.8 mm between 3 May 2010 and when they were inspected on 6 October 2010. If this had been so, it was possible that the brake linings had sufficient thickness to pass an RTA registration inspection on 3 May 2010 but on 6 October 2010 were in the conditions observed by Mr Lawrie and Mr Plessas.
Further, in cross examination, Dr Casey accepted, in relation to the disintegrated or broken up rear brake linings seen on 6 October 2010, that there was no evidence as to when the linings broke up and he specifically accepted that he did not know whether or not they were broken up when Mr Lewry inspected the brakes on 5 May 2010. In the end, Dr Casey said it was highly unlikely that it had broken up at the time of the RTA inspection on 3 May 2010 and also accepted that this meant that the breaking up of the rear brake linings probably happened some time after Mr Lewry inspected them on 5 May 2010. If this is so, it would follow that the rear brake linings deteriorated very markedly over the course of the 4,000 km travelled after 5 May 2010 or during the extraction or towing processes or as a result of a combination of those activities.
Having regard to all the evidence, I was not satisfied on the balance of probabilities that Dr Casey's second assumption that travelling 4,000 km between 5 May and 14 May 2010 had no significant effect on the state of the bus's rear brake linings was established.
The third assumption was that the rear brake linings as shown in the police photographs taken on 6 October 2010 were considerably less than 8 mm thick and were only 3-4 mm thick. To the extent that this was based on an assessment by Dr Casey or other persons of the photographs, it is important to bear in mind that the use of photographs must be approached with caution, especially when matters such as specific measurements are not the subject of other evidence: Blacktown City Council v Hocking [2008] NSWCA 144 at [169]; (2008) Aust Torts Reports ¶81-956 (Tobias JA, Giles JA agreeing); Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 (Goode) at [89]-[96] (Beazley P, Leeming and Meagher JJA agreeing); and Hawkesbury Sports Council v Martin [2019] NSWCA 76 at [35] (Meagher JA and Emmett AJA) and [131] (Simpson AJA). In addition, the use of photographs can be deceptive, particularly in relation to perspective, distance or, as in this case, thickness: Taitoko v R [2020] NSWCCA 43 at [80]-[81] (Leeming JA, Hoeben CJ at CL and Lonergan J agreeing); Goode at [93]. I was not prepared to conclude on the basis of the evidence as a whole, including consideration of the photographs that, on the balance of probabilities, that the rear brake linings that could be observed were only 3-4 mm thick. For what it is worth, the linings appeared in parts to be level with or above the rivet which, it was accepted, were approximately 8 mm high. It can be noted that Dr Casey accepted in cross examination that, if the brake linings were in fact 8 mm thick or were at or about the rivet head, his "theory [was] really incorrect".
Accordingly, since the factual assumptions on which Dr Casey's opinion was based were not established to the requisite standard, I did not accept his opinion that it was far more likely than not that the thickness of the rear brake linings on 5 May 2010 were similar to their thickness after the crash and as observed on 6 October 2010.
Further and in light of the evidence as a whole, I preferred the evidence of Mr Scott where he and Dr Casey were not in agreement. In my view, the substance and reliability of Mr Scott's opinions were not effectively challenged in cross examination, whereas the foundations for Dr Casey's opinions were seriously challenged and he effectively conceded that his opinions may well be incorrect or inapplicable given the other material and assumptions that were put to him. While I accepted that both of the expert witnesses were truthful and were putting forward opinions genuinely held by them, in my view Mr Scott's evidence appeared to suitably measured and practical having regard to the assumptions available on the material before him. Most significantly, Mr Scott's assumptions corresponded more closely with my findings of fact than Dr Casey's and Mr Scott's reasoning was, in my view, more convincing than Dr Casey's, especially in light of the matters raised in cross examination of Dr Casey, including the matters referred to above.
I also accepted the following based on the evidence of Mr Scott: 1. on a vehicle such as the bus, front brakes do more braking and wear at a higher rate than rear brakes meaning they are replaced more frequently and it was clear in the present case that the front brakes had been recently replaced, but when was unknown. On this basis, wear on the front brakes could not be compared to wear on the rear brakes of the bus and it could not be concluded that they would wear at substantially the same rate. Thus, another of the assumptions relied upon by Dr Casey to reach his opinion that the rear brake linings were not in a materially different state on 5 May 2010 compared to their state on 6 October 2010 was not made out; 2. wear on the brake linings would vary dramatically subject to the nature of use of the vehicle, where the vehicle was driven and the load the vehicle was carrying; and 3. the excessive wear to the rear brake linings observed on 6 October 2010 was likely to have been a result, at least in part, of the 4,000 km travelled culminating in the long descent prior to the crash, which would have caused extreme brake operating conditions, and of the fact that the rear brake linings were not new as at 3 May 2010.
Moreover, since there was no evidence of the usage of the bus during most of the period when the bus covered most of the 4,000 km between 5 May and 14 May 2010, I concluded that, even if Mr Scott's opinion in this regard were not accepted, it was not established on the balance of probabilities that the 4,000 km travelled between 5 May and 14 May 2010 had no material effect on the rear brake linings of the bus.

Conclusion as to the state of the rear brake linings on 5 May 2010

For all of those reasons, I reached the conclusion that neither the evidence of the state of the rear brake linings on 6 October 2010, nor the results of the VIT testing conducted at Zetland on 6 October 2010, nor the opinions of Dr Casey nor any other evidence in this case provided an adequate basis for: 1. concluding, on the balance of probabilities, that the rear brake linings were not inspected and passed by the RTA inspector on 3 May 2010; 2. rejecting the evidence of Mr Fassoularis or Mr Lewry which I inferred established that they inspected the rear brake linings on 3 and 5 May 2010, respectively, and they considered those linings adequate to meet the requirements for safe use of the bus; or 3. concluding, on the balance of probabilities, that the rear brake linings were less than 0.8 mm above the rivets on 3 or 5 May 2010.
Thus, in all the circumstances I was of the view that CIC had not discharged its onus of proof in respect of the determinative factual issue in that it failed to establish to the requisite standard that the rear brake linings of the bus were less than 0.8 mm above the rivets on 5 May 2010. Furthermore, given that I was satisfied on the balance of probabilities that: 1. the rear brake linings of the bus were assessed by the RTA inspector as more than 0.8 mm above the rivets and thus not liable to be defected on 3 May 2010; 2. the MAHA test results did not suggest any relevant lack of brake force in respect of the rear brakes of the bus on 3 May 2010; 3. the rear brake linings were inspected by Mr Fassoularis on 3 May 2010 and were assessed by him as being acceptable until the next service; 4. the bus was only driven 30 km between the RTA inspection on 3 May and Mr Lewry's inspection on 5 May 2010; 5. after Mr Lewry conducted a decelerometer brake test and inspected the rear brake linings on 5 May 2010, he cleared the vehicle defect notice on that date; and 6. the unsatisfactory state of the rear brake linings on 6 October 2010 was likely to have been the result of one or more of: 1. the way in which the brakes were used, the terrain covered and the load of the bus during the approximately 4,000 km travelled between 5 May and 14 May 2010; 2. the operation of the brakes during the descent down Moss Vale Road to the crash site; 3. the bus crashing down into rough bush and through vegetation for 42 metres and the subsequent extraction of the bus, with the maxi brake applied and some (albeit limited) brake force being applied to the rear wheels; and 4. the towing of the bus with the maxi brake applied approximately 190 km at speeds of up to 80 km per hour, without cage bolts being used to protect the integrity of the brake linings during the towing, especially since the VIT test results on 6 October 2010 indicated that there was some, albeit inadequate, brake force being generated by the rear brakes, consistent with there being some contact between the rear brake linings and the brake drums causing friction and brake force, even after the bus had been towed for 190 km with the maxi brake on, I was also comfortably satisfied that on 5 May 2010 the rear brake linings of the bus were at least, and probably somewhat more than, 0.8 mm above the rivets at that date.
Finally, I note that Hallew submitted that CIC's failure to adduce evidence in relation to various aspects of G&S Mini Bus's use and maintenance of the bus would enable the Court more readily to draw inferences in support of Hallew's case, applying the principle in Jones v Dunkel, as explained by Beazley P (as her Excellency then was) in Muriniti v De Costi (2018) 97 NSWLR 398; [2018] NSWCA 49 at [78]. While this contention might have considerable force if G&S Mini Bus were the relevant party in these proceedings, it was not clear whether CIC, as G&S Mini Bus's insurer subrogated to its rights, should be treated in this respect as if it were G&S Mini Bus itself. In any event, it did not prove necessary for me to consider whether or not I should rely on that principle. I have drawn the inferences and reached the conclusions that I have, without applying the principle in Jones v Dunkel. If that principle were applied in the manner for which Hallew contended, it would not have led to any different result.

Conclusion on liability

For the reasons set out above, the plaintiff's contention that it has discharged its onus and established that Mr Lewry breached his duty of care either by not inspecting the rear brake linings on 5 May 2010 or by not observing that the linings were less than 0.8 mm below the rivets must fail.
Furthermore, because I have found, on the balance of probabilities, that Mr Lewry did inspect the rear brake linings on 5 May 2010, no legal issue as to the extent of Mr Lewry's duty of care when clearing a brake imbalance defect arose in this case and it was not necessary to consider this issue any further.
Since the plaintiff has not established any breach of duty by Mr Lewry, there is no negligence for which Hallew is vicariously liable in the present case. Consequently, in the circumstances, CIC has not established that Hallew is a tort-feasor liable in respect of the same damage as CIC and CIC's claim for contribution under s 5(1)(c) of the 1946 Act must fail in its entirety. Moreover, since Hallew is not a tort-feasor liable in respect of the damage, it has no liability and thus no entitlement to claim contribution or indemnity from CIC.

Inappropriate to make hypothetical finding as to just and equitable contribution

Furthermore, on my findings as to what occurred, Hallew has no relevant responsibility for the damage suffered by any of the claimants against CIC. In this situation, it is not possible or appropriate to attempt to assess the amount of contribution that would be just and equitable having regard to the extent of Hallew's responsibility for the damage, if it were found that I was wrong in relation to my conclusion on liability. This is so because the contribution that would be just or equitable would depend on the alternative findings as to what occurred which led to Hallew being liable and the extent to which those findings indicated that Hallew had responsibility for the damage. In the absence of such findings, I have not attempted to deal with the hypothetical question of what contribution would be just and equitable, if I were wrong on the question of liability.

Costs

There did not appear to me, as presently advised, to be any circumstances that would justify a departure from the usual position that costs should follow the event. The parties did not submit that there were. In these circumstances, I propose to order that CIC Allianz Insurance pay Hallew Pty Ltd's costs in each set of proceedings. If there are matters which could give rise to a different costs order, these can be raised by way of a notice of motion seeking to vary the costs order, filed within the time permitted by the Uniform Civil Procedure Rules for variation of an order.

Orders

For the reasons set out above, CIC has been unsuccessful in its claims against Hallew for contribution or indemnity under s 5(1)(c) of the 1946 Act and Hallew's claim for contribution or indemnity against CIC did not arise. Accordingly, the orders of the Court are: In proceedings 2014/00099044: 1. Judgment on the first cross claim for the cross defendant, Hallew Pty Ltd. 2. The second cross claim is dismissed. 3. CIC Allianz Insurance Limited is to pay Hallew Pty Ltd's costs of and incidental to the first and second cross claims. In proceedings 2017/00137903: 1. Judgment for the defendant, Hallew Pty Ltd. 2. The plaintiff, CIC Allianz Insurance Limited, is to pay Hallew Pty Ltd's costs of and incidental to the statement of claim.

Endnotes

Despite the similarity in trading names, there was no connection between G&S Mini Bus and Hallew Pty Ltd trading as G&S Diesel Service.
Ex 7 par 16.
Par 25 of Ex N Schedule of Agreed Facts.
Par 21 of Ex N Schedule of Agreed Facts.
Par 25 of Ex N Schedule of Agreed Facts.
Pars 26, 27 and 28 of Ex N Schedule of Agreed Facts. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2022

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